UNIVERSITY 

OF  CALIFORNIA 

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SCHOOL  OF  LAW 
LIBRARY 


STUDIES  IN  THE  POLICE  POWER  OF 
THE  NATIONAL  GOVERNMENT 


J 
t) 


ROBERT   EUGENE  CUSHMAN 

"i 

Associate  Professor  of  Political  Science, 
University  of  Minnesota. 


Reprinted  from  the  Minnesota  Law  Review, 

Vol.  Ill,  Nos.  5,  6,  and  7,  April,  May  and  June,  1919, 

Vol.  IV ,  Nos.  4  and  6,  March  and  May,  1920. 


T 
69596s 


: 


THE  NATIONAL  POLICE  POWER 

UNDER  THE 
COMMERCE  CLAUSE  OF  THE   CONSTITUTION 

To  point  out  to  the  man  in  the  street  that  while  the  Congress 
of  the  United  States  may  pass  laws  to  suppress  the  white  slave 
traffic  or  the  sale  of  adulterated  food,  it  has  no  power  to  prohibit 
child-labor  or  to  'regulate  marriage  and  divorce,  does  not  add 
much  to  his  understanding  of  American  constitutional  law.  Too 
often  it  merely  decreases  his  respect  for  the  constitution  and  the 
courts  which  construe  it.  His  feeling  is  one  of  exasperation  that 
any  truly  national  need  should  exist,  any  national  problem  should 
cry  for  solution,  and  the  national  legislature  should  lack  the 
authority  to  deal  with  it. 

The  point  of  view  of  the  layman  emphasizes  in  striking  fash- 
ion the  completeness  with  which,  as  a  people,  we  have  been  won 
over  more  or  less  unconsciously  to  the  belief  that  Congress  has, 
or  ought  to  have,  authority  to  pass  any  salutary  law  in  the  interest 
of  the  national  welfare.  Instead  of  surprise  that  Congress 
should  have  the  temerity  to  penetrate  into  a  new  field  of  legisla- 
tion, there  is  impatience  to  find  that  there  is  any  such  field  into 
which  Congress  may  not  penetrate.  It  is  the  purpose  of  this 
article  to  restate  some  fundamental  doctrines  of  our  constitutional 
law  and  review  some  of  the  steps  in  our  constitutional  history 
with  a  view  to  making  clear  the  somewhat  precarious  trial  and 
error  process  by  which  Congress  has  come  gradually  to  legislate 
in  affairs  over  which  it  has  been  supposed  to  have  no  jurisdiction 


290  MINNESOTA  LAW  REVIEW 

— to  assume  responsibility  for  the  safety,  health,  morals,  good 
order,  and  general  welfare  of  the  nation,  and  thus  to  exercise 
what  may  be  called  a  national  police  power. 

It  seems  clear  that  it  is  entirely  proper  to  use  the  term  "na- 
tional police  power."  To  borrow  a  definition  of  the  police  power 
from  the  authority  perhaps  most  competent  to  lend,1  it  is  that 
power  of  government  which  "aims  directly  to  secure  and  promote 
the  public  welfare"  by  subjecting  to  restraint  or  compulsion  the 
members  of  the  community.  It  is  the  power  by  which  the  gov- 
ernment abridges  the  freedom  of  action  or  the  free  use  of  prop- 
erty of  the  individual  in  order  that  the  welfare  of  the  state  or 
nation  may  not  be  jeopardized.  It  is  obvious,  then,  that  when 
Congress  places  a  prohibitive  tax  upon  poisonous  matches,  ex- 
cludes obscene  literature  from  the  mails,  or  enacts  an  employers' 
liability  law,  it  is  exercising  police  power.  What  is  the  source 
and  nature  of  this  police  power  which  Congress  enjoys  and 
what  are  the  limitations  upon  it? 

THEORY  OF  THE  NATIONAL  POLICE  POWER 
Principle  of  Enumerated  Powers  of  Congress 

To  understand  clearly  the  nature  of  the  national  police  power 
it  is  necessary  to  bear  in  mind  one  of  the  a  b  c's  of  our  constitu- 
tional law,  namely,  that  Congress  enjoys  those  powers  of  legis- 
lation, and  only  those,  which  are  positively  given  to  it  by  the 
constitution.  Unlike  the  states,  which  enjoy  all  powers  which 
have  not  been  taken  away  from  them,  it  has  only  the  powers  which 
are  delegated  to  it.  The  subjects  over  which  it  may  exercise  con- 
trol are  carefully  enumerated.  It  would  be  useless  to  argue  a 
point  so  firmly  established.  Nothing  is  clearer  than  that  the 
purpose  of  the  Convention  of  1787  was  to  confer  upon  the  new 
Congress  a  certain  group  of  powers  definitely  delimited  and  to 
leave  the  other  powers  of  government  in  the  hands  of  the  states. 
Hamilton's  famous  argument  in  the  Federalist2  against  the  adop- 
tion of  a  bill  of  rights  to  the  new  constitution  urged,  it  will  be 
recalled,  that  to  add  to  the  constitution  a  list  of  things  which 
Congress  might  not  do,  when  Congress  had  never  been  given 
power  by  the  constitution  to  do  them,  savored  of  the  dangerous 

1  Freund,  Police  Power,  Sec.  3. 
-  Federalist,  No.  84. 


THE  NATIONAL  POLICE  POWER  291 

doctrine  that  Congress  enjoyed  powers  not  positively  granted  to 
it  provided  they  had  not  been  specifically  denied  to  it.  Any  such 
danger  was,  of  course,  obviated  by  the  Tenth  Amendment  de- 
claring that  "the  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively,  or  to  the  people" ;  and  since  that  time 
commentators  and  courts  have  joined  with  complete  unanimity  in 
making  the  doctrine  that  the  powers  of  Congress  are  enumerated 
powers  a  constitutional  axiom.3 

The  effect  of  this  doctrine  of  enumerated  powers  upon  the 
right  of  Congress  to  exercise  a  national  police  power  is  perfectly 
plain.  The  enumeration  of  congressional  powers  in  the  constitu- 
tion does  not  include  any  general  grant  of  authority  to  pass  laws 
for  the  protection  of  the  health,  morals,  or  general  welfare  of  the 
nation.4  It  follows,  then,  that  if  Congress  is  to  exercise  a  police 
power  at  all  it  must  do  so  by  a  process  something  akin  to  indirec- 
tion ;  that  is,  by  using  the  powers  which  are  definitely  confided  to 
it,  for  the  purposes  of  the  police  power.  If  it  would  enter  upon 
an  ambitious  program  to  protect  public  morals  or  safety  or  health 
or  to  promote  good  order,  it  must  cloak  its  good  works  under  its 
authority  to  tax,  or  to  regulate  commerce,  or  to  control  the  mails,  » 
or  the  like,  and  say,  "By  this  authority  we  pass  this  law  in  the 
interest  of  the  public  welfare."  In  short,  Congress  exercises  a 
generous  police  power  not  because  that  power  is  placed  directly 
in  its  hands  but  because  it  has  the  power  to  regulate  commerce,  to 
lay  taxes,  and  to  control  the  mails,  and  uses  that  authority  for 
the  broad  purposes  of  the  general  welfare.5 

3  "The  constitution  was,  from  its  very  origin,  contemplated  to  be  the 
frame  of  a  national  government,  of  special  and  enumerated  powers.    This 
is  apparent,  as  will  presently  be  seen  from  the  history  of  the  proceedings 
of  the  convention  which  framed  it ;  and  it  has  formed  the  admitted  basis 
of  all  legislative  and  judicial  reasoning  upon  it  ever  since  it  was  put  in 
operation,  by  all  who  have  been  its  open  friends  and  advocates  as  well  as 
by  all  who  have  been   its   enemies  and  opponents."     Story,  Constitution, 
5th  ed.,  I.  Sec.  909. 

4  Sec.  8,  Art.  I,  of  the  constitution  reads :   "The  Congress  shall  have 
power  to  lay  and  collect  Taxes,  Duties.  Imposts  and  Excises,  to  pay  the 
Debts  and  provide  for  the  common  Defense  and  general  Welfare  of  the 
United  States;     .     .     ."     It  has  been  generally  agreed,  however,  that  this 
clause  does  not  confer  a  general  police  power  upon  Congress,  but  merely 
the  power  of  levying  taxes,  etc.,  for  the  purpose  of  paying  the  debts  and 
providing  for  'the  common  defense  and  general  welfare  of  the  country. 
For  elaborate  review  of  the  authorities  on  this  point,  see  Watson,  Con- 
stitution, I,  p.  390  et  seq. 

6  This  point  is  further  emphasized  and  the  practice  severely  criticized 
in  v  illuminating  article  by  Judge  Charles  M.  Hough,  Covert  Legislation 


292  MINNESOTA  LAW  REVIEW 

That  Congress  can  exercise  police  power  only  in  so  far  as  it 
is  possible  to  utilize  one  of  its  enumerated  powers  for  that  pur- 
pose is  not  due  to  accident  or  inadvertence.  The  limited  nature 
of  that  police  power  has  been  emphasized  and  re-emphasized  by 
the  unsuccessful  efforts  of  those  who  from  1787  to  the  present 
time  have  sought  to  secure  its  enlargement  and  invest  Congress 
with  a  power  adequate  to  deal  with  any  truly  national  problem. 
The  earliest  of  these  efforts  was  made  in  the  Convention  of  1787. 
Four  resolutions  were  introduced  during  the  sessions  of  that 
body,  varying  somewhat  in  phraseology  but  similar  in  purpose.6 
That  purpose,  to  quote  the  language  of  the  one  introduced  by 
Mr.  Bedford,  was  to  confer  upon  Congress  the  power  "to  legislate 
in  all  cases  for  the  reneral  interests  of  the  Union,  and  also  in 
those  to  which  the  States  are  severally  incompetent,  or  in  which 
the  harmony  of  the  United  States  may  be  interrupted  by  the 
exercise  of  individual  legislation."  In  defeating  these  resolutions 
the  Convention  passed  squarely  upon  the  question  whether  or  not 
Congress  should  enjoy  a  general  police  power  for  the  protection 
of  the  national  welfare  apart  from  its  specifically  enumerated 
powers  and  decided  that  it  should  not. 

There  is  a  difference  of  opinion  among  historians  and  com- 
mentators as  to  whether  James  Wilson  actually  held  to  the 
doctrine  that  Congress  possessed  any  general  unenumerated  pow- 
ers. Certain  utterances  of  his  have,  however,  been  quoted  to 
prove  that  he  held  this  view ;  and  more  than  a  century  later 
President  Roosevelt  used  him  as  ari  authority  in  support  of  his 
famous  doctrine  of  "New  Nationalism."  In  1785  Wilson  re- 
ferred to  the  powers  of  Congress  under  the  Articles  of  Confed- 
eration in  the  following  language :  "Though  the  United  States  in 
congress  assembled  derive  from  the  particular  States  no  power, 
jurisdiction,  or  right  which  is  not  expressly  delegated  by  the  con- 
federation, it  does  not  thence  follow  that  the  United  States  in 
congress  have  no  other  powers,  jurisdiction,  or  rights,  than  those 
delegated  by  the  particular  states.  The  United  States  have  gen- 
eral rights,  general  powers,  and  general  obligations,  not  derived 

and  the  Constitution,  (1917)  30  Harv.  Law  Rev.  801.  See  also  an  article 
by  Paul  Fuller,  Is  There  a  Federal  Police  Power?  (1904)  4  Col.  Law  Rev. 
563. 

6  Farrand.  Records  of  the  Federal  Convention  of  1787.  I.  p.  229;  II, 
pp.  25,  26,  367.  The  first  of  these  was  the  sixth  resolution  in  the  report 
of  the  Committee  of  the  Whole ;  the  others  were  introduced  by  Sherman, 
Bedford,  and  Rutledge,  respectively. 


THE  NATIONAL  POLICE  POWER  293 

from  any  particular  state,  nor  from  all  the  particular  states, 
taken  separately;  but  resulting  from  the  union  of  the  whole. 
.  .  .  To  many  purposes  the  United  States  are  to  be  considered 
as  one  undivided,  independent  nation ;  and  as  possessed  of  all  the 
rights,  and  powers,  and  properties  by  the  law  of  nations  incident 
to  such.  Whenever  an  object  occurs,  to  the  direction  of  which 
no  particular  state  is  competent,  the  management  of  it  must,  of 
necessity,  belong  to  the  United  States  in  congress  assembled. 
There  are  many  objects  of  this  extended  nature."7  If  such  a 
construction  could  be  placed  upon  the  powers  of  the  congress  of 
the  Confederation,  powers  which  were  not  only  delegated  but 
expressly  delegated,  then  surely  the  same  construction  could  be 
placed,  a  fortiori,  upon  the  powers  of  Congress  under  the  present 
constitution,  which  omits  the  word  "expressly."  When  the  fed- 
eral constitution  was  before  the  Pennsylvania  convention  for 
ratification  Wilson,  who  was  a  member  of  that  body,  made  a 
speech  in  which  he  declared  that  the  framers  of  the  constitution 
in  drawing  a  line  between  the  powers  of  the  national  government 
and  those  of  the  states  had  acted  upon  the  principle  that  "What- 
ever object  of  government  is  confined  in  its  operation  and  effect 
within  the  bounds  of  a  particular  state,  should  be  considered  as 
belonging  to  the  government  of  that  state;  whatever  object  of 
government  extends  in  its  operations  or  effects  beyond  the  bounds 
of  a  particular  state,  should  be  considered  as  belonging  to  the 
government  of  the  United  States."8  Although  this  statement 
might  lend  support  to  the  view  that  Congress  could  deal  with 
national  problems  because  they  were  national  even  in  the  absence 
of  a  positive  grant  of  authority  to  do  so,  it  seems  hardly  neces- 
sary to  regard  it  in  any  other  light  than  as  a  simple  statement  of 
the  object  which  the  Convention  tried  to  attain  in  the  matter  of 
distributing  powers  between  the  nation  and  the  states.  Without 
speculating  further  on  the  actual  significance  of  the  statements 
quoted,  it  may  be  noted  that  no  trace  is  found  of  the  so-called 
"Wilson  Doctrine"  in  Wilson's  judicial  utterances,  nor  is  there 
other  evidence  that  he  ever  became  an  active  exponent  of  that 
principle.9 

7  Considerations  on  the  Power  to  Incorporate  the  Bank  of  North 
America,  Wilson's  Works,  Andrews'  ed.,  I,  pp.  557,  558. 

s  Ibid.,  p.  533. 

9  In  support  of  the  so-called  Wilson  doctrine,  see :  L.  H.  Alexander, 
James  Wilson,  Patriot,  and  the  Wilson  Doctrine,  North  Am.  Rev.  vol.  183, 
p.  971 ;  Governor  Samuel  W.  Pennypacker,  Address  at  Wilson  Memorial 


294  MINNESOTA  LAW  REVIEW 

It  remained  for  President  Roosevelt  to  discover  or  at  least 
to  label  the  neutral  or  "twilight"  zone  in  our  constitutional 
system — a  zone  lying  between  the  jurisdictions  of  the  state  and 
the  nation,  to  which  lawbreakers  of  great  wealth  might  repair 
and  be  free  from  punishment  or  restraint.  Large  corporations 
had  come  to  be  beyond  the  reach  of  the  state  because  they  had 
grown  to  national  dimensions;  they  were  outside  the  effective 
control  of  Congress  because  the  constitution  does  not  confer 
upon  Congress  a  positive  grant  of  authority  to  deal  with  them 
directly.  It  was  to  meet  this  situation  that  President  Roose- 
velt urged  his  doctrine  of  "New  Nationalism,"  first  as  a  prin- 
ciple of  constitutional  interpretation,  and,  failing  in  that,  as  a 
constitutional  amendment.  That  doctrine  may  be  best  stated 
in  his  own  words :  "It  should  be  made  clear  that  there  are 
neither  vacancies  nor  interferences  between  the  limits  of  state 
and  national  jurisdictions,  and  that  both  jurisdictions  together 
compose  only  one  uniform  and  comprehensive  system  of  gov- 
ernment and  laws;  that  is,  whenever  the  states  cannot  act, 
because  the  need  to  be  met  is  not  one  merely  of  a  single  locality, 
then  the  national  government,  representing  all  the  people, 
should  have  complete  power  to  act."10  In  public  addresses 
delivered  after  1906  President  Roosevelt  reverted  again  and 
again  to  this  subject,  urging  always  that  the  federal  govern- 
ment should  be  competent  to  deal  with  every  truly  national 
problem  and  expressing  his  impatience  at  "the  impotence  which 
springs  from  overdivision  of  government  powers,  the  impo- 
tence which  makes  it  possible  for  local  selfishness  or  for  legal 
cunning,  hired  by  wealthy  special  interests,  to  bring  national 
activities  to  a  deadlock."11 

But  if  this  "New  Nationalism"  is  ever  to  be  incorporated  into 
our  constitutional  law  it  will  need  to  be  by  a  constitutional 
amendment.  In  the  case  of  Kansas  v.  Colorado,  decided  in 
1907,12  the  Supreme  Court  was  invited  to  adopt  that  doctrine 
in  construing  the  powers  of  Congress,  but  it  declined  in  no 

Services,  (1906)  55  Am.  Law  Reg.  p.  13;  President  Roosevelt,  speech  at 
dedication  of  Pennsylvania  state  capitol,  quoted  and  discussed  in  Willough- 
by,  Constitution,  I,  p.  48.  The  doctrine  is  criticized  by  Edward  Lindsay 
in  Wilson  Versus  the  "Wilson  Doctrine,"  44  Am.  Law  Rev.  p.  641. 

10  From  his  speech  at  Ossawatomie,  Kansas,  August  31,  1910. 

11  Idem.     The  doctrine  of  "New  Nationalism"  is  discussed  and  criti- 
cized in  Willoughby,  Constitution,  I,  pp.  48-66. 

"  (1907)  206  U.  S.  46,  51  L.  Ed.  956,  27  S.  C.  R.  655. 


THE  NATIONAL  POLICE  POWER  295 

uncertain  language  to  do  so.  It  was  urged  upon  the  court  in 
that  case  that  Congress  had  a  paramount  right  to  control  the 
whole  system  of  reclaiming  arid  lands  in  a  state,  whether  owned 
by  the  United  States  or  not,  on  the  theory  that  "all  powers 
which  are  national  in  scope  must  be  found  vested  in  the  Con- 
gress of  the  United  States."  Such  a  view  the  court  held  to  be 
in  direct  conflict  with  the  general  established  doctrine  that  the 
national  government  is  a  government  of  enumerated  powers 
and  also  with  the  specific  provisions  of  the  Tenth  Amendment. 
"This  amendment,"  declared  the  court,  "which  was  seemingly 
adopted  with  prescience  of  just  such  contention  as  the  present, 
disclosed  the  widespread  fear  that  the  national  government 
might,  under  the  pressure  of  a  supposed  general  welfare,  attempt 
to  exercise  powers  which  had  not  been  granted.  With  equal  de- 
termination the  f  ramers  intended  that  no  such  assumption  should 
ever  find  justification  in  the  organic  act,  and  that  if,  in  the  future, 
further  powers  seemed  necessary,  they  should  be  granted  by  the 
people  in  the  manner  they  had  provided  for  amending  that  act. 
It  reads :  'The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people.'  The  argument  of  counsel 
ignores  the  principal  factor  in  this  article,  to  wit,  'the  people.5  Its 
principal  purpose  was  not  the  distribution  of  power  between  the 
United  States  and  the  states,  but  a  reservation  to  the  people  of 
all  powers  not  granted."  It  would  seem  from  this  opinion  that 
President  Roosevelt's  "twilight  zone"  is  firmly  intrenched  in  our 
constitutional  system  and  that  those  who  hope  to  develop  a  na- 
tional police  power  by  interpretation  or  by  any  method  but 
amendment  are  doomed  to  disappointment.13 

Principle  of  Implied  Powers 

It  is  perfectly  certain  that  under  the  doctrine  that  Congress 
has  no  powers  which  are  not  enumerated  in  the  constitution  it 
would  have  been  quite  impossible  to  develop  a  national  police 

13  This  doctrine  of  a  general,  inherent,  unenumerated  power  of  Con- 
gress is  not  to  be  confused  with  what  Story  termed  "resulting  powers,"  or 
those  deduced  from  several  or  all  of  the  enumerated  powers  of  Congress. 
See  Commentaries,  5th  ed.,  II,  Sec.  1256.  Among  the  examples  of  such 
"resulting  powers"  are  the  power  to  exercise  the  right  of  eminent  domain, 
Kohl  v.  United  States,  (1875)  91  U.  S.  367,  23  L.  FA  449;  the  power  to 
issue  legal  tender  notes,  Juilliard  v.  Greenman,  (1884)  110  U.  S.  421,  28  L. 
Ed.  204,  4  S.  C.  R.  122;  and  the  power  to  exclude  aliens,  Fong  Yue  Ting 
v.  United  States,  (1893)  149  U.  S.  698.  37  L.  Ed.  905,  13  S.  C.  R.  1016.  See 
Willoughby,  Constitution,  I,  Sees.  37,  38. 


296  MINNESOTA  LAW  REVIEW 

power  were  it  not  for  the  fact  that  the  scope  of  congressional 
authority  was  vastly  increased,  and  the  possibility  of  ever-multi- 
plying extensions  of  power  opened  up,  by  the  establishment  upon 
a  firm  foundation  of  the  so-called  doctrine  of  implied  powers. 
It  will  be  recalled  that  under  the  Articles  of  Confederation  "Each 
State  retains  its  sovereignty,  freedom,  and  independence,  and 
every  power,  jurisdiction,  and  right,  which  is  not  by  this  confed- 
eration expressly  delegated  to  the  United  States  in  Congress  as- 
sembled."14 When  the  Tenth  Amendment  was  being  debated  by 
Congress  in  1789  a  motion  was  made  to  insert  there  also  the  word 
"expressly"  before  the  word  "delegated."  This  motion,  however, 
was  rejected.15  The  bitter  controversy  which  raged  between  the 
Federalists  and  the  anti-Federalists  as  to  whether  or  not  Congress 
might  exercise  powers  which  were  not  expressly  conferred  was 
not  settled  finally  and  authoritatively  until  Marshall's  famous 
opinion  in  1819  in  the  case  of  McCulloch  v.  Maryland.™  It  was 
in  that  opinion  that  Marshall  gave  his  classic  statement  of  the 
doctrine  of  implied  powers :  "Let  the  end  be  legitimate,  let  it  be 
within  the  scope  of  the  Constitution,  and  all  means  which  are 
appropriate,  which  are  plainly  adapted  to  that  end,  which  are  not 
prohibited,  but  are  consistent  with  the  letter  and  spirit  of  the 
Constitution,  are  constitutional."  Thus  the  ghost  of  strict  con- 
struction was  laid  forever,  at  least  so  far  as  the  Supreme  Court 
was  concerned;  and  in  1884-Mr.  Justice  Miller,  by  way  of  giving 
it  a  suitable  epitaph,  took  occasion  to  allude  to  "the  old  argument, 
often  heard,  often  repeated,  and  in  this  court  never  assented  to, 
that  when  a  question  of  the  power  of  Congress  arises  the  advocate 
of  the  power  must  be  able  to  place  his  finger  on  the  words  which 
expressly  grant  it."17  . 

Thus  it  will  be  seen  that  while  the  doctrine  of  enumerated 
powers  imposes  upon  Congress  the  necessity  of  finding  among  its 
delegated  powers  what  has  been  aptly  termed  "a  definite  consti- 
tutional peg"  upon  which  to  hang  every  exercise  of  the  national 
police  power,  the  doctrine  of  implied  powers,  or  the  liberal  con- 
.  struction  of  congressional  authority,  has  made  it  possible  to  hang 
upon  those  "pegs"  an  enormous  amount  of  salutary  legislation  in 
the  interest  of  the  national  health,  safety,  and  well  being.  The 

14  Art.  II.     Italics  are  the  author's. 

15  Annals  of  Congress,  I,  p.  768. 
16(1819)  4  Wheat. '(U.S.)  316. 

"  Ex  parte  Yarbrough.  (1884)  110  U.  S.  651,  658,  28  L.  Ed.  274,  4  S.  C. 
R.  152. 


THE  NATIONAL  POLICE  POWER  297 

"pegs"  themselves  are  few  in  number,  the  only  important  ones 
being  the  power  to  regulate  commerce,  the  power  to  tax,  and  the    / 
power  to  establish  and  run  the  postal  system ;  but  the  police  legis-  / 
lation  which  they  have  been  made  to  support  deals  with  anything 
from  the  white  slave  traffic  to  speculation  in  cotton. 

LIMITATIONS  ON  THE  NATIONAL  POLICE  POWER 

In  the  exercise  of  its  police  power  Congress  is  subject  to  three 
definite  constitutional  limitations.  The  first  of  these  limitations 
has  already  been  outlined :  Congress  must,  in  passing  police  legis- 
lation, use  an  enumerated  power;  in  other  words,  there  must  / 
always  be  a  constitutional  peg.  This  would  seem  on  first  thought 
to  be  entirely  obvious.  Yet  occasionally  Congress  has  tried, 
always  unsuccessfully,  to  do  without  the  peg.  In  1867  Congress 
forbade  the  sale  of  illuminating  oils  which  were  below  a  certain 
fire  test.18  The  law  was  declared  invalid  because  it  was  entirely 
unrelated  to  any  of  the  delegated  powers19  of  Congress.  It  was 
not  a  regulation  of  interstate  commerce;  it  was  not  a  tax;  and 
Congress  did  not  pretend  that  it  was.  For  the  same  reason  the 
act  of  1876  punishing  the  counterfeiting  of  trademarks  and  the 
sale  of  counterfeit  trademark  goods20  was  declared  unconstitu- 
tional.21 The  excerpt  quoted  above22  from  the  opinion  of  the 
court  in  Kansas  v.  Colorado  emphasizes  the  same  point.  In  all 
of  these  cases  Congress  had  tried  to  pass  police  regulations  with- 
out finding  a  constitutional  peg  on  which  to  hang  them. 

The  second  limitation  requires  that  a  real  relevancy  exist  be- 
tween  the  police  regulation  and  the  peg  upon  which.it  is  hung. 
Assuming  that  Congress  in  exercising  its  police  power  uses  one  bf 
its  delegated  powers  and  labels  its  act  accordingly  as  a  tax  law,  a 
regulation  of  commerce,  or  the  like,  the  law  must  then  pass  the 
test:  is  there  a  reasonable  enough  connection  between  the  law 
Congress  has  passed  and  the  constitutional  grantof  power  on  which 
Congress  has  relied  in  passing  it  to  warrant  its  being  regarded  as 
a  regulation  of  commerce,  or  the  mails,  or  the  like?  If  our  courts 

18  Act  of  March  2,  1867,  Chap.  169  Sec.  29,  14  Stat.  at  L.  484. 

i»  United  States  v.  De  Witt,  (1870)  9  Wall.  (U.S.)  41.  The  title  of  the 
act  was  "An  Act  to  amend  existing  Laws  relating  to  Internal  Revenue, 
and  for  other  Purposes."  The  section  involved  here  must  have  been  one 
of  those  passed  "for  other  purposes,"  for  it  made  no  reference  to  any  tax. 

20  Act  of  August  14,  1876.  19  Stat.  at  L.  141. 

21  Trade-Mark  Cases,  (1879)  100  U.  S.  82,  25  L.  Ed.  550. 

22  Supra,  p.  295. 


298  MINNESOTA  LAW  REVIEW 

in  determining  the  validity  of  legislation  took  account  of  the 
motives  of  law-makers,  these  motives  would  in  the  main  tend  to 
become  the  test  of  the  validity  of  the  law;  but  since  the  courts 
ignore  those  motives  and  take  legislation  at  its  face  value,  the 
relevancy  of  the  law  to  its  label  becomes  the  test.  In  other  words, 
it  is  proper  enough  for  Congress  to  use  its  power  over  interstate 
commerce  as  a  means  of  protecting  the  national  health  or  morals ; 
but  Congress  must  not  get  so  absorbed  in  the  work  of  protecting 
the  national  health  or  morals  that  it  forgets  that  it  is,  after  all, 
supposed  to  be  regulating  interstate  commerce.  When  this  test 
was  applied  to  the  law  passed  in  1907  by  which  Congress  made  it 
a  felony  for  any  person  to  harbor  an  alien  prostitute  within  three 
years  after  her  entrance  into  this  country,23  the  court  found  that 
while  the  authority  of  Congress  to  regulate  immigration  was  un- 
doubted and  while  the  law  of  which  the  provision  in  question  was 
a  part  was  entitled  "An  Act  to  Regulate  the  Immigration  of  Aliens 
into  the  United  States,"  nevertheless  that  provision  did  not  as  a 
matter  of  fact  regulate  immigration.24  "The  validity  of  the  provi- 
sion in  question,"  declared  the  court,  "should  be  determined  from 
its  general  effect  upon  the  importation  and  exclusion  of  aliens. 
But  it  is  sufficient  to  say  that  the  act  charged  has  no  significance  in 
either  direction."  The  provision  was  invalid  because  it  did  not 
bear  a  sufficiently  close  relation  to  anything  over  which  the  consti- 
tution gives  Congress  authority  to  act.  In  a  case  which  will  be 
discussed  at  a  later  point25  it  was  held  that  the  provision  of  the 
Erdman  Act  forbidding  interstate  carriers  to  discharge  employees 
because  of  membership  in  labor  organizations  was  not  a  legiti- 
mate exercise  of  congressional  authority  because  there  was  no 
connection  between  interstate  commerce  and  membership  in  a 
labor  union.26  In  the  other  cases  which  will  be  considered  in  the 
course  of  this  article  it  will  be  seen  that  no  law  which  Congress 
has  passed  in  the  exercise  of  a  national  police  power  has  been 
upheld  unless  the  court  has,  after  careful  scrutiny  of  this  point, 


23  Act  of  February  20,  1907,  34  Stat.  at  L.  898. 

2*  Keller  v.  United  States,  (1909)  213  U.  S.  138,  53  L.  Ed.  737,  29  S.  C. 
R.  470,  16  Ann.  Cas.  1066. 

25  Adair  v.  United  States,  (1908)  208  U.  S.  161,  52  L.  Ed.  436,  28  S.  C. 
R.  277,  13  Ann.  Cas.  764.    See  infra,  pp.  308,  317. 

26  Professor  Goodnow  takes  the  view  that  this  part  of  the  opinion  is 
dictum,  since  the  court  had  already  declared  the  provision  under  consider- 
ation to  be  a  violation  of  the  due  process  of  law  clause  of  the  Fifth 
Amendment.     Social  Reform  and  the  Constitution,  81  et  seq. 


THE  NATIONAL  POLICE  POWER  299 

been  convinced  that  the  law  was  at  the  same  time  a  real  and  sub- 
stantial exercise  of  one  of  the  enumerated  powers  of  Congress. 

The  third  limitation,  or  set  of  limitations,  upon  the  national 
police  power  is  to  be  found  in  the  specific  prohibitions  upon  con- 
gressional authority  contained  in  the  constitution  and  particularly 
in  the  bill  of  rights.  These  restrictions  operate  in  a  perfectly 
obvious  and  direct  fashion;  Congress  may  use  its  delegated 
powers  for  the  protection  of  the  national  welfare ;  but  in  so  doing 
it  must  not  take  life,  liberty,  or  property  without  due  process  of 
law,  take  private  property  for  public  use  without  just  compen- 
sation, interfere  with  religious  liberty,  or  do  any  of  those  things 
which  it  is  definitely  forbidden  by  the  constitution  to  do.  This 
third  limitation  rests  upon  the  well-established  principle  that  the 
specific  prohibitions  of  the  constitution  act  as  restraints  upon  the 
general  grants  of  powers  to -Congress.27  The  restriction  of  due 
process  of  law  is  the  one  perhaps  most  commonly  enforced  against 
exercises  of  the  national  police  power,  particularly  those  passed 
under  the  commerce  clause ;  but  in  the  exercise  of  the  power  over 
the  postal  system  for  the  protection  of  the  national  morals  or 
safety  the  question  has  sometimes  arisen  whether  or  not  Congress 
has  violated  the  guarantees  of  freedom  of  the  press,  or  the  guar- 
antee against  unreasonable  searches  and  seizures.28 

In  the  light  of  the  foregoing  constitutional  principles  and 
limitations,  it  is  the  purpose  of  the  present  article  to  discuss  the 
police  power  which  Congress  has  exercised  under  the  grant  of 
authority  to  regulate  commerce;  and  to  mark  out  the  scope  and 
variety  of  the  protection  which  has  been  accorded  the  national 
safety,  health,  morals,  and  general  welfare  in  this  somewhat  in- 
direct and  roundabout  way. 

GENERAL  NATURE  AND  SCOPE  OF  THE  COMMERCE  POWER 

If  one  were  obliged  to  name  the  most  potent  cause  leading  to 
the  calling  of  the  Convention  of  1787  he  would  not  hesitate  in 
choosing  the  need  for  a  national  control  over  foreign  and  inter- 

27  Story,  Constitution,  II,  Sec.  1864  et  seq.  Monongahela  Navigation  Co. 
v.  United  States.  (1893)  148  U.  S.  312,  336,  37  L.  Ed.  463,  13  S.  C.  R.  622. 

28  Ex  parte  Jackson,  (1877)  96  U.  S.  727.  24  L.  Ed.  877;  In  re  Rapier, 
(1892)  143  U.  S.  110,  36  L.  Ed.  93,  12  S.  C.  R.  374;  Lewis  Publishing  Co. 
v.  Morgan,  (1913)  229  U.  S.  288,  57  L.  Ed.  1190.  33  S.  C.  R.  867;  Public 
Clearing  House  v.  Coyne,  (1904)  194  U.  S.  497,  48  L.  Ed.  1092,  24  S.  C.  R. 
789. 


300  MINNESOTA  LAW  REVIEW 

state  commerce.  That  there  was  scant  discussion  of  the  problem 
in  the  Convention  was  perhaps  due  to  the  unanimity  of  convic- 
tion among  the  members  of  that  body  that  the  power  to  regulate 
commerce  should  unquestionably  rest  in  the  new  Congress.  Since 
the  adoption  of  the  constitution  no  small  part  of  the  time  of  Con- 
gress has  been  occupied  with  the  exercise  of  this  power,  and 
no  small  part  of  the  time  of  the  Supreme  Court  has  been  spent  in 
passing  upon  the  constitutionality  and  meaning  of  those  laws. 
Considering  the  wide  range  of  instrumentalities  and  transactions 
which  have  come  to  be  included  in  the  term  commerce  it  is  but 
natural  that  the  authority  to  regulate  it  should  serve  as  the  con- 
stitutional basis  for  the  development  of  a  wide  national  police 
power. 

The  constitution  confers  upon  Congress  the  power  to  regulate 
three  kinds  of  commerce:  first,  "with  foreign  nations,"  second, 
"among  the  several  states,"  and  third,  "with  the  Indian  tribes."29 
The  power  given  in  respect  to  each  of  these  is  the  same,  that  is, 
the  power  to  "regulate";  and  there  is  nothing  in  the  language 
used  to  indicate  that  the  framers  of  the  constitution  had  in  mind 
any  distinctions  as  to  the  extent  of  the  power  of  Congress  over 
each  type.  Congress  early  utilized  its  authority  over  these  differ- 
ent classes  of  commerce,  however,  in  different  ways,  to  meet 
widely  different  problems,  and  apparently  without  stopping  to 
discuss  whether  its  power  over  one  was  greater  than  over  an- 
other. It  was  not  until  railroad  transportation  reached  a  high 
point  of  development  that  Congress,  a  full  century  after  the  fram- 
ing of  the  constitution,  began  to  turn  its  mind  seriously  to  the 
problems  of  interstate  commerce  regulation.  But  in  the  mean- 
time the  regulations  of  foreign  and  Indian  commerce  had  been 
numerous  and  rigorous  in  character.  The  question  has,  therefore, 
become  pertinent  whether  Congress  actually  does  have  exactly 
the  same  power  over  interstate  commerce  that  it  enjoys  over 
commerce  with  foreign  nations  and  with  the  Indian  tribes,  or 
whether  that  power  is  more  restricted.  Especially  has  it  been  re- 
peatedly urged  by  those  interested  in  the  expansion  of  a  national 
police  power  that  Congress  could  exercise  every  power  over  inter- 
state commerce  which  it  could  exert  in  controlling  foreign  com- 
merce.30 

29  Art.  I,  Sec.  8. 

30  This   position  has   been   taken,   for  instance,   by  those  who  believe 
that  Congress  may  restrict  child-labor  by  means  of  its  control  over  inter- 


THE  NATIONAL  POLICE  POWER  301 

It  is  possible  to  cite  several  cases  in  which  the  Supreme  Court 
has  expressed  the  opinion  that  there  is  no  difference  between  the 
powers  of  Congress  over  foreign  and  interstate  commerce.31  Mar- 
shall voiced  this  view  in  Gibbons  v.  Ogden,32  and  in  1888  Mr. 
Justice  Mathews  in  Bowman  v.  Chicago,  etc.,  Ry.  Co.  declared, 
"The  power  conferred  upon  Congress  to  regulate  commerce  among 
the  States  is  indeed  contained  in  the  same  clause  of  the  Constitu- 
tion which  confers  upon  it  power  to  regulate  commerce  with 
foreign  nations.  The  grant  is  conceived  in  the  same  terms,  and 
the  two  powers  are  undoubtedly  of  the  same  class  and  character 
and  equally  extensive."33  While  these  statements  sound  perfectly 
conclusive  and  final,  the  fact  remains  that  in  passing  upon  the 
validity  of  several  of  the  congressional  police  regulations  over 
interstate  commerce  the  court,  though  urged  to  do  so,  has  steadily 
declined  to  uphold  such  regulations  on  the  ground  that  similar 
police  restrictions  applicable  to  foreign  commerce  have  been  sus- 
tained.34 A  substantial  body  of  opinion  has  grown  up  in  support 
of  the  view  that  there  is,  after  all,  a  difference  between  the  two 
powers.  It  is  urged  by  an  eminent  authority  that  "although  the 
three  classes  of  commerce  are  thus  included  in  the  same  clause 
and  in  the  same  terms  in  the  enumeration  of  powers,  they  are 
clearly  distinguishable  in  their  historic  setting  and  constitutional 
import,  and  the  laws  which  are  necessary  and  proper  in  regulating 
commercial  intercourse  with  foreign  nations  and  with  the  Indian 
tribes  may  not  be  necessary  and  proper  in  regulating  such  com- 
mercial intercourse  between  the  states."35  Without  anticipating 
the  more  detailed  discussion  of  this  problem  appropriate  at  a  later 
point  in  this  article,  it  may  be  suggested  that  Congress  has  actu- 
ally exercised  a  police  power  over  foreign  commerce  which  there 
is  reason  to  believe  would  be  regarded  as  beyond  its  proper 
authority  if  applied  to  commerce  among  the  several  states.  And 
while  there  is  no  authoritative  judicial  pronouncement  upon  this 
question,  an  authority  over  interstate  commerce  which  does  not 


state  commerce.    This  point  will  be  further  considered  in  a  later  section 
of  this  article. 

31  For  citation  of  these  cases,  with  comment,  see  note  by  E.  B.  Whitney, 
7  Yale  Law  Jour.  294. 

32  (1824)  9  Wheat.  (U.S.)  1.  228,  6  L.  Ed,  23. 

33  (1888)  125  U.  S.  465.  482,  31  L.  Ed.  700,  8  S.  C.  R.  689. 

34  This  was  true  both  in  the  Lottery  Case  and  in  the  recent  child-labor 
case ;  it  will  be  treated  more  fully  in  connection  with  the  latter  case. 

35  Judson,  Interstate  Commerce,  3rd  ed.,  Sec.  6. 


302  MINNESOTA  LAW  REVIEW 

extend  to  the  exclusion  from  the  channels  of  that  commerce  of  the 
products  of  factories  employing  child-labor36  can  hardly  be  called 
co-extensive  with  an  authority  over  foreign  commerce  which  ex- 
cludes from  our  shores  the  products  of  convict-labor.37 

The  relationship  between  the  national  government  and  the  In- 
dians has  always  been  regarded  as  anomalous,  and  it  would  be 
unprofitable  to  enter  upon  any  extended  comparison  of  the  power 
of  Congress  over  interstate  commerce  with  that  over  commerce 
with  the  Indian  tribes.  Our  control  over  these  people  has  been 
paternalistic  in  character.38  Because  of  the  importance  and  deli- 
cacy of  the  problem,  Congress  has  regulated  intercourse  with  the 
Indians  with  a  rigorous  hand.  It  has  forbidden  commercial  deal- 
ings with  them  in  certain  commodities,  as,  for  example,  intoxi- 
cating liquors  ;39  and  has  even  gone  to  the  length  of  forbidding 
any  one  to  trade  with  them  without  a  license  issued  by  the  federal 
government.40  It  seems  probable  that  restraints  have  been  placed 
upon  commerce  with  the  Indians  which  could  not  be  imposed  upon 
ordinary  trade  relations  between  citizens  of  the  states. 

The  following  discussion  of  the  police  power  which  Congress 
has  come  to  exercise  under  the  commerce  clause  may  properly  be 
confined,  therefore,  to  the  problems  relating  to  interstate  com- 
merce. This  is  appropriate  not  only  because  it  is  in  that  field  of 
regulation  that  the  national  police  power  has  developed  in  most 
striking  and  most  varied  form,  but  also  because  the  preceding 
paragraphs  make  it  clear  that  if  there  is  any  constitutional  dis- 
tinction among  the  powers  of  Congress  over  foreign,  interstate, 
and  Indian  commerce  the  power  over  interstate  commerce  is  the 
most  narrowly  restricted ;  and  accordingly  whatever  police  power 
Congress  may  exercise  over  interstate  commerce  it  may  exercise 
over  foreign  and  Indian  commerce. 


36  Hammer  v.  Dagenhart,  (1918)  247  U.  S.  251,  38  S.  C  .R.  529. 

37  Act  of  October  3,  1913,  38  Stat.  at  L.  195.     The  validity  of  this  law 
has  never  been  questioned  and  would  seem,  in  the  light  of  numerous  prec- 
edents, to  be  unquestionable. 

3«  Matter  of  Heff,  (1905)  197  U.  S.  488,  498.  49  L.  Ed.  848,  25  S.  C.  R. 
501  (overruled  in  United  States  v.  Nice,  [1916]  241  U.  S.  591,  36  S.  C.  R. 
696). 

s^Held  valid  in  United  States  v.  Holliday.  (1866)  3  Wall.  (U.S.)  407, 
18  L.  Ed.  182;  United  States  v.  Forty-three  Gallons  of  Whiskey,  (1876) 
93  U.  S.  188,  23  L.  Ed.  846. 

40  Upheld  in  United  States  v.  Cisna,  (1835)  25  Fed.  Cas.  422.  See  Act 
of  March  3.  1903.  32  Stat.  at  L.  1009. 


THE  NATIONAL  POLICE  POWER  303 

While  the  police  regulations  which  Congress  has  passed  under 
its  authority  to  regulate  interstate  commerce  have  been  exceed- 
ingly numerous  and  have  dealt  with  a  wide  range  of  topics,  from 
locomotive  ashpans  to  obscene  literature,  they  may  all  be  placed 
for  convenience  in  four  groups,  according  to  the  general  purpose 
of  their  enactment  and  the  constitutional  principles  upon  which 
they  are  based.  (I)  In  the  first  group  may  be  placed  those  regu- 
lations in  which  Congress  has  exercised  police  power  for  the  pro- 
tection and  promotion  of  interstate  commerce  itself  by  the  enact- 
ment of  such  laws  as  the  safety  appliance  acts,  the  anti-trust  acts, 
and  other  regulations  designed  to  keep  that  commerce  safe,  effi- 
cient, and  unobstructed.  (II)  The  second  group  comprises  the 
cases  in  which  the  law  forbids  the  use  of  interstate  commerce  as 
a  medium  or  channel  for  transactions  which  menace  the  national 
health,  morals,  or  welfare.  In  this  class  would  be  placed  the  Pure 
Food  Act,  the  White  Slave  Act,  and  other  statutes  by  which  Con- 
gress, instead  of  protecting  commerce  itself  from  danger,  pro- 
tects the  nation  from  the  misuse  of  that  commerce.  (Ill)  The 
third  group  consists  of  the  enactments  by  which  Congress  co-oper- 
ates with  the  states  by  forbidding  the  use  of  the  facilities  of  inter- 
state commerce  for  the  purpose  of  evading  or  violating  state  police 
regulations.  Here  would  be  found  such  laws  as  the  Webb- 
Kenyon  Act,  excluding  from  interstate  commerce  shipments  of 
liquor  consigned  to  dry  territory.  (IV)  In  the  last  group  should 
be  placed  the  Keating-Owen  Child-Labor  Act  of  1916,  by  which 
Congress  attempted  to  deny  the  privileges  of  interstate  commerce 
to  articles  produced  under  conditions  which  Congress  disapproved 
but  which  it  had  no  direct  power  to  control.  Careful  con- 
sideration may  profitably  be  given  to  each  of  these  groups. 


I.     NATIONAL  POLICE  POWER  FOR  PROMOTION  AND  PROTECTION 

OF  COMMERCE 

1.  Appliances  and  Physical  Regulations  Necessary  for  Safety. 
It  is  but  natural  that  Congress  should  feel  that  one  of  the  most 
obvious  and  necessary  duties  imposed  upon  it  by  the  grant  of 
power  to  regulate  commerce  is  the  duty  to  pass  police  regulations 
to  protect  from  destruction,  loss,  or  damage  the  lives,  limbs,  and 
property  of  persons  concerned  in  the  processes  or  transactions  of 
interstate  commerce,  whether  as  passengers,  shippers,  or  em- 


304  MINNESOTA  LAW  REVIEW 

ployees.  As  early  as  1838  laws  were  passed  requiring  the  in- 
stallation of  safety  devices  upon  steam  vessels.41  Beginning  with 
a  statute  passed  in  1866  Congress  has  rigorously  controlled  the 
transportation  on  land  and  water  of  explosives.42  But  it  was  not 
until  1893  that  Congress  began  to  enact  the  comprehensive  set  of 
safety  appliance  acts  now  applicable  to  interstate  railroads.43  The 
first  of  these  acts  was  the  Automatic  Coupler  Act,44  which  has 
been  supplemented  by  more  recent  laws  requiring,  among  other 
things,  the  use  of  ashpans45  on  locomotives,  the  inspection  of 
boilers,46  and  the  use  of  ladders,  hand-brakes,  drawbars,  and 
similar  devices  on  cars.47  To  the  same  general  purpose  are  the 
statutes  requiring  railroads  to  make  full  reports  to  the  Interstate 
Commerce  Commission  regarding  all  accidents.48  A  statute  of 
1913  protects  interstate  commerce  from  another  type  of  loss  by 
making  criminal  the  unauthorized  breaking  of  the  seals  of  rail- 
road cars  containing  interstate  or  foreign  shipments.49 

The  purpose  of  Congress  in  passing  these  laws  is  perfectly 
plain.  Most  of  them,  following  the  pioneer  Safety  Appliance 
Act  of  1893,  declare  specifically  that  their  object  is  "to  promote 
the  safety  of  employees  and  travellers  upon  railroads."  The 
courts  have  uniformly  recognized  this  purpose.  "The  Safety 
Appliance  Act,"  declares  one  federal  judge,  "is  essentially  a  police 
regulation.  Its  general  purpose  is  humanitarian — the  safeguard- 
ing of  employees  from  injury  and  death."50  In  the  words  of 
another  court,  "the  object  of  Congress  in  passing  the  safety  ap- 
pliance acts  was  undoubtedly  to  safeguard  interstate  commerce, 
the  life  of  the  passengers,  and  the  life  and  limb  of  the  employees 


41  Act  of  July  7,  1838.  5  Stat.  at  L.  304 ;  Act  of  March  3,  1843,  ibid.,  626. 

42  Act  of  July  3,  1866,  14  Stat.  at  L.  81.     For  legislation  on  this  subject 
now  in  force,  see  the  U.  S.  Criminal  Code  of  March  4,  1909,  35  Stat.  at  L. 
1134,  Sees.  232-236. 

43  Collected  in  Comp.  Stat.  1918,  Sees.  8605-8650 ;  3  U.  S.  S.  A.  480-530. 

44  Act  of  March  2.  1893,  27  Stat.  at  L.  531. 
«  Act  of  May  30,  1908,  35  Stat.  at  L.  476. 

4«Acts  of  February  17,  1911,  36  Stat.  at  L.  913,  and  March  4,  1915,  38 
ibid.,  p.  1192. 

4-  Act  of  April  14,  1910,  36  Stat.  at  L.  298. 

4«  Act  of  May  6,  1910,  36  Stat.  at  L.  351;  Act  of  February  17,  1911, 
ibid.,  p.  216. 

49  Act  of  February  13.  1913,  37  Stat.  at  L.  670.  Upheld  in  Morris  v. 
United  States,  (1916)  229  Fed.  516. 

so  United  States  v.  Philadelphia,  etc.,  Ry.  Cc     '1915 N  223  Fed.  215,  216. 


THE  NATIONAL  POLICE  POWER  305 

engaged  therein."51  The  Supreme  Court  itself  has  declared  the 
purpose  of  this  legislation  to  be  "to  promote  the  public  welfare 
by  securing  the  safety  of  employees  and  travellers."52 

That  these  statutes  designed  to  insure  the  physical  safety  of 
interstate  commerce  are  police  regulations  falling  well  within  the 
recognized  limits  of  congressional  power  is  too  obvious  to  call 
for  argument ;  so  obvious,  in  fact,  that  the  Supreme  Court  has 
never  been  asked  to  decide  a  case  in  which  it  was  squarely  con- 
tended that  acts  of  this  kind  were  not  natural  and  legitimate  regu- 
lations of  commerce.53  Moreover,  in  several  cases  involving  the 
meaning  and  application  of  these  statutes,  as  well  as  in  cases  in- 
volving analogous  exercises  of  the  commerce  power,  that  tribunal 
has  alluded  to  the  safety  appliance  acts  in  terms  which  place  the 
question  of  their  validity  in  the  realm  of  settled  law.54  And  in- 
deed if  the  power  to  regulate  commerce  does  not  include  the 
power  to  make  reasonable  rules  to  secure  the  physical  safety  of 
the  lives  and  property  of  travellers,  shippers,  and  employees,  it 
may  well  be  inquired  what  conceivable  kind  of  commercial  regu- 
lation could  be  regarded  as  legitimate. 

2.  Regulations  of  Labor  Necessary  for  Safety  of  Interstate 
Commerce,  (a)  Hours  of  Service  Act:  It  came  at  last  to  be 
recognized  that  safety  appliances  and  regulations  were  not  enough 
in  and  of  themselves  to  insure  the  physical  safety  of  interstate 
commerce.  There  were  plenty  of  gruesome  proofs  of  the  fact 
that  life  and  property  on  interstate  railroads  were  as  much 
jeopardized  by  the  deadening  fatigue  of  a  locomotive  engineer 
as  by  the  absence  of  block  signals  or  automatic  couplers.  Ac- 
cordingly, in  1907  Congress  passed  the  Hours  of  Service  Act,55 
making  it  unlawful  for  any  interstate  carrier  to  employ  a  train- 

51  United  States  v.  Atl.  Coast  Line  R.  Co..  (1913)  214  Fed.  498,  499. 
•«  Johnson  v.  So.  Pacific  Co.,  (1904)  196  U.  S.  1,  17,  49  L.  Ed.  365,  25 
S.  C.'R.  158. 

53  The  validity  of  these  laws  has  been  passed  upon  squarely,  however, 
in  numerous  decisions  of  the  lower  federal  courts.     For  extensive  citation 
of  cases,  see  Thornton,  The  Federal  Employers'  Liability  Act,  3rd  ed.,  p. 
334 :  Richey,  Federal  Employers'  Liability,  Safety  Appliance,  and  Hours 
of  Service  Acts,  2nd  ed..  Sec.  215.  . 

54  Johnson  v.  So.  Pacific  Co.,  supra;  Schlemmej  v.  Buffalo,  etc.,  Ry  Co., 
(1907)  205  U.  S.  1.  51  L.  Ed.  681,  27  S.  C.  R.  407:  Employers'  Liability 
Cases!  (1908)  207  U.  S.  463.  52  L.  Ed.  297.  28  S.  C.  R.  141 :  Southern  Ry. 
Co.  v.  United  States.   (1911)  222  U.  S.  20,  56  L.  Ed.  72.  32  S.  C.  R.  2; 
Second  Employers'  Liability  Cases.  C1912)  223  U.  S.  1,  56  L.  Ed.  327,  32 
S.  C.  R.  169.  38  L.  R.  A.  (N.S.)  44;  Wilson  v.  New.  (1917)  243  U.  S.  332. 
61  L.  Ed.  755,  37  S.  C.  R.  298. 

ss  March  4,  1907,  34  Stat.  at  L.  1415. 


306  MINNESOTA  LAW  REVIEW 

man  for  a  period  longer  than  sixteen  consecutive  hours  and  re- 
quiring definite  rest  periods  in  every  twenty-four  hours.  The 
hours  of  train  dispatchers  and  telegraphers  were  still  further  re- 
duced, thirteen  consecutive  hours  being  the  maximum  where  only 
day  work  was  required  and  nine  hours  out  of  twenty-four  where 
both  night  and  day  work  was  expected. 

It  is  important  to  bear  in  mind  that  such  a  limitation  upon 
hours  of  service  as  that  provided  for  in  the  act  of  1907  stands  in 
sharp  contrast,  both  in  purpose  and  in  constitutional  justification, 
to  such  a  statute  as  the  Adamson  Law  providing  for  a  standard 
eight-hour  day  on  interstate  railroads.  While  the  employees 
affected  by  the  Hours  of  Service  Act  would  of  course  benefit  by 
the  relief  granted  from  continuous  labor  for  long  hours,  such 
relief  constituted  only  a  secondary  motive  for  the  passage  of  the 
act;  certainly  the  legal  authorization  of  a  sixteen-hour  day  does 
not  indicate  a  very  vigorously  humanitarian  interest  in  the  welfare 
;  of  the  working-men  affected.  The  object  of  the  act  was  quite 
clearly  to  promote  the  safety  of  interstate  commerce  on  railroads ; 
and  the  title  of  the  statute  specifically  declares  it  to  be  "An  Act 
to  Promote  the  Safety  of  Employees  and  Travellers  upon  Rail- 
roads by  Limiting  the  Hours  of  Service  of  Employees  Thereon." 
Viewed  thus  as  a  safety  regulation,  there  could  be  no  serious 
question  as  to  the  validity  of  the  act;  and  in  upholding  it  as  a 
valid  exercise  of  the  power  of  Congress  to  regulate  commerce 
Mr.  Justice  Hughes  declared :  "In  its  power  suitably  to  provide 
for  the  safety  of  employees  and  travelers,  Congress  was  not 
limited  to  the  enactment  of  laws  relating  to  mechanical  appliances, 
but  it  was  also  competent  to  consider,  and  to  endeavor  to  reduce, 
the  dangers  incident  to  the  strain  of  excessive  hours  of  duty  on 
the  part  of  engineers,  conductors,  train  dispatchers,  telegraphers, 
and  other  persons  embraced  within  the  clause  defined  by  the 
act."56  At  a  later  point  in  this  article57  it  will  be  made  clear  that 
no  such  argument  as  this  was  applied  to  the  Adamson  Law,  and 
it  was  sustained  by  the  Supreme  Court  on  widely  different 
grounds. 

(b)     Employers'  Liability  Statutes:     When  Congress,  after 
considerable  prodding  by  an  energetic  and  persistent  president,58 

1  56  Baltimore  &  Ohio  R.  Co.  v.  Int.  Com.  Comm.,  (1911)  221  U.  S.  612, 
55  L.  Ed.  878,  31  S.  C.  R.  621. 

ST  Infra,  p.  315. 

58  President  Roosevelt  urged  the  passage  of  the  act  in  various  mes- 
sages to  Congress.  , 


THE  NATIONAL  POLICE  POWER  307 

finally  passed  the  first  Employers'  Liability  Act  in  1906,59  there 
is  every  reason  to  believe  that  the  members  of  that  body  were 
actuated  by  a  humanitarian  interest  in  the  welfare  of  the  work- 
men on  interstate  railroads.  Like  the  state  legislatures  which  had 
passed  similar  laws,  they  wished  to  take  away  the  unjust  and 
oppressive  burdens  which  the  common  law  doctrines  of  employ- 
ers' liability  had  placed  upon  the  shoulders  of  the  injured  work- 
man. Senator  Dolliver,  who  was  a  particularly  vigorous  pro- 
ponent of  the  law,  expressed  in  the  senate  his  belief  that  there  was 
not  a  single  senator  "who  does  not  recognize  the  equity  and  justice 
involved"  in  such  legislation,  and  added  that  "there  is  scarcely  an 
American  state  in  these  recent  years  which  has  not  taken  this 
step  forward  in  industrial  justice."™  The  federal  employers'  lia- 
bility laws  were  passed  in  order  to  guarantee  to  the  men  to  whom 
they  applied  a  reasonably  square  deal. 

It  must,  therefore,  have  been  something  of  a  surprise  to  the 
members  of  Congress  who  had  fought  and  voted  for  this  legis- 
lation to  learn  from  the  Supreme  Court  that  what  they  had  really 
passed  was  not  an  act  to  secure  economic  justice  in  certain  rela- 
tions between  employers  and  employees  in  interstate  commerce, 
but  a  safety  regulation.61  It  will  throw  some  light  upon  the 
nature  of  the  limitations  resting  upon  the  police  power  of  Con- 
gress to  understand  why  it  is  that  from  the  standpoint  of  consti- 
tutional law  there  is  no  substantial  difference  between  the  Em- 
ployers' Liability  Act  and  the  Boiler  Inspection  Act. 

It  is  not  difficult  to  follow  the  steps  in  the  chain  of  reasoning 
which  led  the  Supreme  Court  to  this  somewhat  startling  result. 
In  the  first  place,  the  power  under  which  Congress  is  purporting 
to  act  in  passing  the  Employers'  Liability  Act  is  the  authority  to 
regulate  commerce ;  Congress  has  no  power  to  regulate  labor  as 
such.  It  follows,  therefore,  that  only  those  regulations  of  the 
relations  between  master  and  servant  which  are  at  the  same  time 


59  June  11,  1906,  34  Stat.  at  L.  232. 

60  Quoted  by  Thornton  in  his  excellent  summary  of  the  legislative  his- 
tory of  the  act.    See  Thornton,  Federal  Employers'  Liability  Act,  3rd  ed. 

61  The  first  Employers'  Liability  Act  was  declared  unconstitutional  by 
the  Supreme  Court  in  the  Employers'  Liability  Cases,  (1908)  207  U.  S.  463, 
52  L.  Ed.  297,  28  S.  C.  R.  141,  because  its  provisions  extended  to  include  the 
employees  of  interstate  carriers  even  when  such  employees  were  not  them- 
selves engaged  in  any  of  the  processes  of  interstate  commerce.     Congress 
remedied  this  defect  in  passing  the  second  statute,  April  22,  1908,  35  Stat. 
at  L.  65.  which  was  held  valid  in  the  Second  Employers'  Liability  Cases, 
(1912)  223  U.  S.  1,  56  L.  Ed.  327,  32  S.  C.  R.  169,  38  L.  R.  A.  (N.S.)  44. 


308 


regulations  of  connvu'rvv  are  within  the  power  of  Congress.  Only 
three  years  before,  trre 'court,  speaking  through  Mr.  Justice 
Harlan  in  the  Adair  case,  had  declared  that  one  of  the  reasons 
why  Congress  had  exceeded  its  power  when  it  forbade  interstate 
carriers  to  discharge  any  employee  because  he  belonged  to  a  labor 
union  was  because  "there  is  no  such  connection  between  interstate 
commerce  and  membership  in  a  labor  organization  as  to  authorize 
Congress"  to  pass  such  a  law.02  Now  if  the  only  object  and  result 
of  the  employers'  liability  statutes  was  to  secure  a  more  equitable 
incidence  of  the  burden  of  industrial  accidents  between  the  em- 
ployers and  the  employees  in  interstate  commerce  and  thereby 
to  protect  the  welfare  of  a  certain  economic  group,  then  Congress 
in  passing  such  an  act  had  again  exceeded  its  authority,  since  it 
could  hardly  be  shown  that  the  statute  really  regulated  interstate 
commerce  or  bore  any  reasonable  relation  to  it.  But  if,  on  the 
other  hand,  it  could  be  shown  that  the  act  would  promote  or 
protect  interstate  commerce  in  some  definite  way,  then,  of  course, 
it  could  be  upheld.  Counsel  for  the  government  therefore  wisely 
urged  upon  the  court  with  great  vigor  the  view  that  "if  the  con- 
ditions under  which  the  agents  or  instrumentalities  do  the  work 
of  commerce  are  wrong  or  disadvantageous,  those  bad  conditions 
may  and  often  will  prevent  or  interrupt  the  act  of  commerce  or 
make  it  less  expeditious,  less  reliable,  less  economical,  and  less 
secure."63  It  is  a  well  established  principle  of  constitutional 
construction  that  a  statute,  when  possible,  should  be  so  construed 
as  to  save  it ;  and  the  court  readily  adopted  the  alluring  argument 
which  made  it  possible  to  sustain  the  validity  of  the  act.  It  de- 
clared its  belief  that  "the  natural  tendency  of  the  changes  de- 
scribed is  to  impel  the  carriers  to  avoid  or  prevent  the  negligent 
acts  and  omissions  which  are  made  the  bases  of  the  rights  of 
recovery  which  the  statute  creates  and  defines ;  and  as  whatever 
makes  for  that  end  tends  to  promote  the  safety  of  the  employees 
and  to  advance  the  commerce  in  which  they  are  engaged,  we 
entertain  no  doubt  that  in  making  those  changes  Congress  acted 
within  the  limits  of  the  discretion  confided  to  it  by  the  Consti- 
tution."04 Thus  a  statute  which,  viewed  merely  as  a  measure  to 
insure  economic  justice  to  the  employees  of  interstate  carriers, 

62  Note  25,  supra. 

63  Second  Employers'  Liability  Cases,  note  61.  supra,  223  U.  S.  at  p.  48. 

64  Ibid.,  p.  50.     For  a  criticism  of  this  point  of  view,  see  L.  .T.  Hall,  The 
Federal  Employers'  Liability  Act,  (1910)  20  Yale  Law  Jour.  122,  in  which 


THE  NATIONAL  POLICE  POWER  309 

would  doubtless  have  been  invalidated,  was  enabled  to  pass  the 
scrutiny  of  the  courts  by  donning  the  somewhat  transparent  dis- 
guise of  a  regulation  to  prevent  railroad  accidents. 

3.  Regulations  Necessary  to  Prevent  the  Obstruction  or  Sus- 
pension of  Interstate  Commerce.  It  has  been  suggested  above 
that  perhaps  the  most  important  cause  for  the  formation  and 
adoption  of  our  federal  constitution  was  the  desire  to  establish  a 
government  with  power  to  regulate  foreign  and  interstate  com- 
merce according  to  a  uniform  rule  and  thereby  to  put  an  end  to 
the  chaos  of  obstructions,  burdens,  and  inharmonious  systems  of 
control  affecting  that  commerce  which  emanated  from  the  jeal- 
ousies of  thirteen  separate  commonwealths.  The  very  first  case 
in  which  the  commerce  clause  of  the  new  constitution  came  before 
the  Supreme  Court  for  interpretation  was  a  case  in  which  the 
court  refused  to  allow  the  state  of  New  York  to  obstruct  the 
freedom  of  interstate  commerce  by  granting  to  one  of  its  citizens 
an  exclusive  right  to  navigate  the  Hudson  River  by  steamboat.65 
Since  that  time  no  small  proportion  of  the  judicial  attention  which 
the  commerce  clause  has  received  has  been  directed  to  the  prob- 
lem of  preventing  state  interference  with  interstate  commerce.  !</ 
It  would  seem,  therefore,  that  in  exercising  its  delegated  power  to 
regulate  commerce  Congress  could  tread  on  no  safer  ground, 
could  use  its  authority  in  no  way  more  clearly  in  harmony  with 
the  purpose  for  which  it  was  conferred,  than'  when  it  passed 
regulations  designed  to  prevent  the  obstruction  or  suspension  of 
commerce. 

And  while,  curiously  enough,  the  positive  enactments  of  this 
kind  to  be  found  in  the  federal  statute  books  are  not  quite  so 
numerous  nor  elaborate  as  one  might  expect,  yet  they  present 
some  problems  of  peculiar  interest  to  those  interested  in  the  de- 
velopment of  a  national  police  power.  They  may  be  conveniently 
arranged  in  the  following  groups,  each  of  which  merits  some 
comment. 

(a)  Regulations  to  Prevent  Physical  Obstructions:   It  is  un- 


it is  urged  that  "it  is  only  by  an  indirect  and  unsatisfactory  metho'd  of 
reasoning-  that  it  can  be  said  that  safety  in  transportation  is  promoted  by 
increasing  the  amount  of  damages  which  a  railroad  company  must  pay  for 
the  acts  of  carelessness  of  its  men  in  their  relations  to  each  other.''  It  will 
be  noted  that  the  article  was  written  before  the  Second  Employers'  Lia- 
bility Casesfwere  decided,  but  its  reasoning  is  applicable  to  the  doctrine  of 
those  cases. 

es  Gibbons  v.  Ogden,  (1824)  9  Wheat.  (U.S.)  1,  6  L.  Ed.  23. 


310  MINNESOTA  LAW  REVIEW 

necessary  to  enlarge  upon  the  fact  that  Congress  has  full  author- 
ity to  penalize  any  act  which  results  in  the  physical  obstruction 
or  interference  with  commerce.  "Any  offense,"  declared  Mr. 
Justice  Story  in  1838,  "which  thus  interferes  with,  obstructs,  or 
prevents  such  commerce  and  navigation,  though  done  on  land, 
may  be  punished  by  Congress,  under  its  general  authority  to  make 
all  laws  necessary  and  proper  to  execute  their  delegated  constitu- 
tional powers."66  Congress  has  accordingly  enacted  a  fairly  sub- 
stantial penal  code  designed  to  preserve  and  protect  navigable 
rivers  and  harbors  from  obstruction,  to  regulate  the  erection  of 
bridges  and  piers,  and  in  various  other  ways  to  keep  commerce 
by  water  free  and  untrammeled.67  There  would  seem  to  be  no 
doubt  as  to  the  existence  of  similar  congressional  authority  to 
afford  this  kind  of  protection  to  the  facilities  of  interstate  land 
commerce;  but,  with  the  exception  of  the  Larceny  Act  of  1913, 
already  mentioned  above,68  and  some  of  the  recent  war  legisla- 
tion,69 Congress  has,  except  in  emergencies  which  will  be  alluded 
N  to  later,70  preferred  to  rely  upon  the  criminal  laws  of  the  several 
states  to  prevent  the  physical  obstruction  of  interstate  commerce 
by  land. 

(b)  Regulations  to  Prevent  Economic  Obstructions  or  Re- 
straints of  Commerce.  ( 1 )  By  combinations  of  capital :  It  would 
not  be  relevant  to  the  subject  under  consideration  to  launch  out 
upon  any  extended  discussion  of  the  highly  interesting  and  impor- 
tant laws  Congress  has  passed  for  the  purpose  of  solving  the  so- 
called  trust  problem.  The  fact  that  the  policy  of  the  federal  gov- 
ernment toward  trusts  and  monopolies  has  not  always  been  happy 
in  its  conception  or  successful  in  its  administration  has  little  to 
do  with  the  fact  that  the  general  underlying  motives  of  that 
policy  have  always  been  the  same:  namely,  to  keep  interstate 
commerce  free  from  the  obstacles  and  interferences  resulting 
from  monopoly  and  other  combinations  and  conspiracies  designed 
to  destroy  free  competition  and  restrain  trade.  It  will  hardly  be 
'X» 

«6  United  States  v.  Coombs,  (1838)  12  Pet.  (U.S.)  72,  9  L.  Ed.  1004. 

67  See  U.  S.  Comp.  Stat.  1918  Sec.  9909  et  seq. 

68  Supra,  p.  304,  note  49. 

69  The  War  Materials  Destruction  Act  of  April  20,  1918.     By  the  provi- 
sions of  this  act  the  instrumentalities  and  facilities  of  interstate  commerce, 
or  "war  utilities"  as  they  are  called,  are,  along  with  "war  materials"  and 
"war  premises,"  protected  from  wilful  injury  and  destruction.     The  act 
rests,  of  course,  upon  the  war  power  of  Congress  and  not  on  the  com- 
merce power. 

TO  Infra,  pp.  314,  315,  notes  87,  88. 


THE  NATIONAL  POLICE  POWER  311 

denied  that  these  acts  are  police  regulations  designed  for  the  pro- 
tection of  commerce.  The  first  of  these  statutes  penalized  certain 
specific  acts,  such  as  discriminations  among  shippers  and  rebating, 
which  Congress  deemed  destructive  to  the  freedom  of  competition 
desirable  in  interstate  commerce.  This  type  of  regulation  includes 
the  Interstate  Commerce  Act  of  1887  and  the  various  amend- 
ments to  it  passed  since  that  time.71  Federal  police  regulations 
making  certain  acts  criminal  were  soon  found  to  be  a  very  inad- 
equate means  of  freeing  interstate  commerce  from  monopolistic 
obstructions ;  and  so  Congress,  convinced  that  relief  could  be  had 
by  breaking  up  trusts,  combinations,  and  conspiracies  in  restraint 
of  trade,  enacted  the  famous  Sherman  Act  of  1890.72  After  two 
decades  of  sporadic  and  more  or  less  ineffectual  "trust-busting," 
Congress  supplemented  the  Sherman  Act  by  legislation  designed 
to  make  the  act  more  definite  in  meaning  and*  effective  in  opera- 
tion.73 This  supplementary  anti-trust  act,  known  as  the  Clayton 
Act,  was  accompanied  by  the  passage  of  the  Trade  Commission 
Act.74  By  the  passage  of  this  latter  act  Congress  embarked  upon 
a  new  policy  in  respect  to  combinations  of  capital — the  policy  of 
administrative  control.  While  this  act  must  still  be  regarded  as 
a  federal  police  regulation  for  the  protection  of  commerce,  the 
method  employed  for  that  purpose  was  the  creation  of  an  admin- 
istrative commission  with  power  to  investigate,  advise,  and  issue 


71  Act  of  February  4,  1887,  24  Stat.  at  L.  379.    The  text  of  this  act  and 
the  amendments  thereto  are  set  forth  and  discussed  at  length  in  Judson. 
Interstate  Commerce,  3rd  ed.     See  also,  Fuller,  The  Interstate  Commerce 
Act,  (1915).     One  striking  instance  of  this  type  of  police  regulation  over 
interstate  commerce  is  to  be  found  in  the  commodities  clause  of  the  Hep- 
burn Act,  June  29,  1906,  34  Stat.  at  L.  584.    The  purpose  of  this  act  was  to 
compel  the  interstate  railroads  to  dispose  of  such  interests  as  they  might 
have  in  the  coal  mining  business  by  making  it  unlawful  for  them  to  carry 
in  interstate  commerce  "any  article  or  commodity  other  than  timber  and 
the  manufactured  products  thereof,  manufactured,  mined  or  produced  by 
it,  or  under  its  authority,  or  which  it  may  own  in  whole  or  in  part,  or  in 
which  it  may  have  an  interest,  direct  or  indirect     .     .     ."    The  legislative 
purpose,  however,  was  not  effectuated,  because  the  Supreme  Court  in  pass- 
ing upon  the  constitutionality  of  the  law  construed  it  in  such  a  way  as  to 
permit  the  railroad  to  transport  coal  from  its  own  mines  provided  such 
coal  had  been  sold  by  the  railroad  before  such  transportation  took  place. 
United  States  v.  Delaware,  etc.,  Co.,  (1909)  213  U.  S.  366,  53  L.  Ed.  836, 
29  S.  C.  R.  527.     For  an  excellent  discussion  of  the  history,  interpretation, 
and  operation  of  the  clause,  see  Kibler,  The  Commodities  Clause  (1916)  ; 
also  Hand,  the  Commodities  Clause  and  the  Fifth  Amendment,  (1909)  22 
Harv.  Law  Rev.  250. 

72  Act  of  July  2.  1890.  26  Stat.  at  L.  209. 

73  The  Clayton  Act  of  October  15,  1914,  38  Stat.  at  L.  731. 

74  Act  of  September  26,  1914,  38  Stat.  at  L.  719. 


312  MINNESOTA  LAW  REVIEW 

orders  based  upon  definite  findings  of  fact.  Combinations  of 
capital  formerly  in  bad  odor  merely  because  of  their  size  and 
importance  were  to  be  kept  within  the  law  and  prevented  from 
interfering  with  the  freedom  of  commerce  by  an  active  govern- 
mental supervision  and  co-operation. 

While  the  litigation  which  has  arisen  under  these  acts,  or  at 
least  under  the  earlier  ones,  has  been  exceedingly  voluminous 
and  the  courts  have  spent  much  time  construing  and  applying 
them  to  the  concrete  problems  which  have  arisen,  there  seems 
never  to  have  been  any  serious  question  raised  as  to  the  authority 
of  Congress  to  pass  laws  designed  to  accomplish  the  results  which 
these  acts  sought  to  achieve.  Such  constitutional  objections  as 
have  been  urged  against  these  enactments  have  been  aimed  at  the 
details  of  method  and  procedure  rather  than  at  the  validity  of  the 
legislative  object.75 

(2)  By  combinations  of  labor:  While  Congress  seems  never 
to  have  passed,  under  its  commerce  power,  any  police  legislation 
which  in  express  terms  names  labor  organizations  and  forbids 
them  to  enter  into  conspiracies  or  to  commit  acts  which  would 
obstruct  or  suspend  interstate  commerce,  several  of  its  enact- 
ments are  couched  in  terms  broad  enough  to  permit  the  courts 
to  apply  their  restraints  and  prohibitions  to  combinations  of 
laborers. 

This  is  true,  in  the  first  place,  of  the  Interstate  Commerce  Act 
of  1887.76  This  act  makes  it  unlawful  for  any  common  carrier 
subject  to  the  provisions  of  the  statute  "to  make  or  give  any  undue 
or  unreasonable  preference  or  advantage  to  any  particular  person, 
company,  firm,  corporation,  or  locality,  or  any  particular  descrip- 
tion of  traffic,  in  any  respect  whatsoever,  or  to  subject  any  par- 
ticular person,  company,  firm,  corporation,  or  locality,  or  any 
particular  description  of  traffic,  to  any  undue  or  unreasonable 
prejudice  or  disadvantage."77  It  is  specifically  made  criminal 
under  heavy  penalty  for  "any  common  carrier  subject  to  the  pro- 
visions of  this  act,  or,  when  such  common  carrier  is  a  corporation, 
any  director  or  officer  thereof,  or  any  receiver,  trustee,  or  lessee, 
agent,  or  person  acting  for  or  employed  by  such  corporation"  to 


75  Any  doubt  as  to  the  validity  of  the  Sherman  Act  was  set  at  rest  by 
the  decision  in  Addyston  Pipe  and  Steel  Co.  v.  United  States,  (1899)   175 
U.  S.  211.  44  L.  Ed.  136.  20  S.  C.  R.  96. 

76  Note  71.  supra. 

77  Sec.  3. 


THE  NATIONAL  POLICE  POWER  313 

do  or  conspire  to  do  any  of  the  unlawful  acts  above  set  forth.78 
In  1893  Judge  Taft  held  that  these  provisions  were  applicable  to 
the  officers  and  members  of  a  brotherhood  of  locomotive  engineers 
who  had  induced  the  railroad  for  which  they  worked  to  join 
them  in  a  boycott  against  a  railroad  which  was  engaged  in  a  strike 
because  of  its  refusal  to  meet  certain  demands  of  its  men.79  As 
long  as  the  men  remained  in  the  employ  of  the  railroad  they  were 
subject  to  injunctions  to  restrain  them  from  violations  of  these 
provisions.  Judge  Taft  also  declared  that  a  conspiracy  on  the  part 
of  the  employees  to  violate  these  sections  could  be  punished  under 
the  general  provision  of  the  Criminal  Code  penalizing  those  who 
"conspire  to  commit  any  offense  against  the  United  States."80  It 
is  thus  clear  that  the  Interstate  Commerce  Act  is  not  only  applic- 
able to  common  carriers  but  imposes  restraints  and  obligations 
for  the  protection  of  interstate  commerce  upon  labor  organizations 
as  well.81 

In  like  manner  the  Sherman  Act82  has  been  applied  to  acts  of 
combinations  of  laborers  when  the  effect  of  those  acts  was  to 
interfere  with  interstate  commerce  or  to  restrain  trade.  It  is 
unnecessary  to  enter  here  into  a  discussion  of  the  question 
whether  or  not  Congress  actually  intended  to  include  the  activities 
of  labor  organizations  within  the  prohibitions  of  the  act.83  It  is 
less  important  that  Mr.  Gompers  and  other  labor  leaders  believed 
that  Congress  intended  that  labor  unions  should  be  outside  the 
scope  of  the  act  than  it  is  that  the  Supreme  Court  should  have 
found  the  words  of  the  statute  so  broad  and  inclusive  that  it 
could  discover  no  legal  basis  for  exempting  labor  unions  from  the 
operation  of  the  act.  The  law  declares  in  sweeping  terms  that 
"Every  contract,  or  combination  in  the  form  of  a  trust,  or  other- 
wise in  restraint  of  trade  or  commerce  among  the  several  states 
or  with  foreign  nations,  is  hereby  declared  to  be  illegal."  In 


78  Sec.  10.    Italics  are  the  author's. 

79  Toledo,  etc.,  Ry.  Co.  v.  Penn.  Co.,   (1893)   54  Fed.  730;  same  case, 
ibid.,  p.  746. 

80  Rev.  Stat.  Sec.  5440. 

81  For  detailed  discussion  of  this  whole  point,  with  citation  of  cases,  see 
Judson,  Interstate  Commerce,  3rd  ed..  Chap.  6  and  Sees.  408-417;  Martin, 
The  Modern  Law  of  Labor  Unions,  Chap.  14. 

82  Note  72,  supra. 

83  A  clear  statement  of  both  sides  of  the  question  is  found  in  Laidler, 
Boycotts  and  the  Labor  Struggle,  170  et  seq. 


314  MINNESOTA  LAW  REVIEW 

construing  that  act,  the  courts,  with  practical  unanimity,84  have 
steadily  refused  to  make  any  distinction  between  combinations 
of  capital  and  combinations  of  labor  which  were  in  restraint  of 
trade.  In  numerous  cases  injunctions  have  been  issued  by  the 
United  States  courts  against  such  restraints  of  trade,  or  against 
more  direct  obstructions  of  commerce  by  labor  organizations;85 
while  in  the  Danbury  Hatters  case  the  Supreme  Court  held 
squarely  that  the  provisions  of  the  Sherman  Act  were  applicable 
to  trade  unions  so  as  to  permit  the  recovery  from  the  members  of 
the  hatters'  union  of  triple  damages  by  their  employers  whose 
business  had  been  injured  by  a  secondary  boycott.86 

During  the  Pullman  strike  of  1893  a  federal  circuit  court 
issued  an  injunction  based  upon  the  provisions  of  the  Sherman 
Act,  restraining  Eugene  V.  Debs  and  other  officers  of  the  Ameri- 
can Railway  Union  from  interfering  in  any  way  with  interstate 
commerce  or  the  mails.87  When  the  case  came  before  the  Su- 
preme Court  on  appeal,  however,  the  court  declined  to  regard 
the  Sherman  Act  as  the  necessary  source  of  the  authority  of  the 
court  to  issue  the  injunction  (although  not  denying  that  it  did 
confer  such  power),  but  declared  that  the  broad  grant  of  author- 
ity to  the  national  government  to  regulate  interstate  commerce 
was  sufficient  in  itself  to  warrant  the  granting  by  the  courts  of 
injunctive  relief  against  those  who  obstructed  or  restrained  such 


84  The  only  exception  seems  to  be  United  States  v.  Patterson,  (1893) 
55  Fed.  605,  in  which  the  court  took  the  view  that  "restraints  of  trade" 
must  be  interpreted  in  the  strict  common  law  sense  as  meaning  efforts  to 
"monopolize  or  grasp  the  market." 

85  United   States   v.   Workingmen's  Amalgamated    Council,    (1893)    54 
Fed.  994,  26  L.  R.  A.  158;  United  States  v.  Debs,  (1894)  64  Fed.  724.  Other 
cases  in  Martin,  op.  cit.,  246,  247,  note  81  >  supra. 

8<5  Loewe  v.  Lawlor,  (1908)  208  U.  S.  274,  52  L.  Ed.  488,  28  S.  C.  R.,  301, 
13  Ann.  Cas.  815.  The  result  reached  in  this  case  would  seem  to  be  im- 
possible under  the  existing  law.  The  Clayton  Act  of  October  15,  1914, 
specifically  declares  that  the  labor  of  a  human  being  is  not  to  be  regarded 
as  a  commodity  or  article  of  commerce  and  that  "nothing  contained  in  the 
anti-trust  law  shall  be  construed  to  forbid  the  existence  and  operation  of 
labor,  agricultural,  and  horticultural  organizations  instituted  for  the  pur- 
pose of  mutual  help  and  not  having  capital  stock  or  conducted  for  profit, 
or  to  forbid  or  restrain  individual  members  of  such  organizations  from 
lawfully  carrying  out  the  legitimate  objects  thereof,  nor  shall  such  organi- 
zations or  members  thereof  be  held  or  construed  to  be  illegal  combinations 
or  conspiracies  in  restraint  of  trade  under  the  anti-trust  laws."  While 
this  act  legalizes  certain  activities  of  labor  organizations  befor*  regarded 
as  illegal,  it  does  not,  of  course,  have  the  effect  of  permit^  9  uiy  direct 
and  substantial  obstructions  of  interstate  commerce. 

87  United  States  v.  Debs,  (1894)  64  Fed.  724. 


THE  NATIONAL  POLICE  POWER  -  .        315 

commerce.88  From  this  decision  it  would  seem,  therefore,  to 
follow  that  specific  police  legislation  by  Congress  to  prevent  the 
obstruction  of  interstate  commerce  is  unnecessary  to  enable  fed- 
eral courts  sitting  in  equity  to  prevent  such  obstruction.. 

To  classify  the  Eight-Hour  Law,  popularly  known  as  the 
Adamson  Law,89  which  was  passed  by  Congress  in  the  autumn 
of  1916,  as  a  police  regulation  to  protect  interstate  commerce 
from  obstruction  and  interference  will  seem  at  first  a  curious 
perversion  of  facts.  But  those  who  will  recall  the  legislative 
history  of  the  statute  and  examine  carefully  the  opinion  of  the 
Supreme  Court  in  the  case  in  which  the  constitutionality  of  the 
law  was  upheld  will  be  convinced  that  such  a  classification  of  the 
act  is  accurate  from  the  standpoint  both  of  legislative  intention 
and  of  constitutional  law.  It  seems  perfectly  clear  that  Congress 
passed  the  law  at  the  request  of  President  Wilson  for  the  single 
purpose  of  averting  the  nation-wide  railroad  strike  which  there 
was  every  reason  to  believe  would  take  place  if  the  law  were  not 
passed.  It  is  equally  apparent  that  the  Supreme  Court  upheld 
the  law  on  the  ground  that  its  passage  was  necessary  to  accom- 
plish this  result  and  avoid  the  threatened  suspension  of  interstate 
commerce.  This  remarkable  decision  merits  some  little  comment. 

In  considering  the  validity  of  the  Adamson  Law,  which  was 
questioned  in  the  case  of  Wilson  v.  New,go  it  was  necessary  for 
the  court  to  apply  the  same  tests  which  it  has  always  applied 
to  regulations  of  commerce  enacted  for  police  purposes.91  In  the 
first  place,  is  the  act  a  bona  fide  regulation  of  commerce ;  in  the 
second  place,  assuming  that  it  is,  does  it  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law?  The  court 
accordingly  addressed  itself  to  the  question  whether  Congress 
was  really  regulating  interstate  commerce  when  it  established 
an  eight-hour  day  for  trainmen  on  interstate  railroads.  The 
answer  of  the  court  to  this  question  was  that  the  act  was  a  regu- 
lation of  interstate  commerce  because  its  passage  was  necessary 
in  order  to  prevent  the  complete  suspension  of  that  commerce. 
It  alluded  to  the  long  list  of  acts,  many  of  which  have  already 
been  discussed  in  this  article,  by  which  Congress  had  sought  to 
make  interstate  commerce  safe  and  efficient.  It  mentioned  par- 

ss  In  re  Debs,  (1895)  158  U.  S.  564,  39  L.  Ed.  1092,  15  S.  C.  R.  900. 
89  Act  of  September  3.  5.  1916,  39  Stat.  at  L.  721. 
so  (1917)  243  U.  S.  332,  61  L.  Ed.  755,  37  S.  C.  R.  298. 
91  Supra,  p.  297  et  seq. 


316  MINNESOTA  LAW  REVIEW 

ticularly  the  Hours  of  Service  Act,  the  Safety  Appliance  Acts, 
and  the  Employers'  Liability  Act,  in  all  of  which  the  power  to 
regulate  commerce  had  been  used  to  control  various  relations 
between  employers  and  employees.  It  then  pointed  out  "how 
completely  the  purpose  intended  to  be  accomplished  by  the  regu- 
lations which  had  been  adopted  in  the  past  would  be  rendered 
unavailing  or  their  enactment  inexplicable  if  the  power  was  not 
possessed  to  meet  a  situation  like  the  one  with  which  this  statute 
[the  Adamson  Law]  dealt.  What  would  be  the  value  of  the 
right  to  a  reasonable  rate  if  all1  movement  in  interstate  commerce 
could  be  stopped  as  the  result  of  a  mere  dispute  between  the 
parties  or  their  failure  to  exert  a  primary  right  concerning  a 
matter  of  interstate  commerce?  Again,  what  purpose  would  be 
subserved  by  all  the  regulations  established  to  secure  the  enjoy- 
ment by  the  public  of  an  efficient  and  reasonable  service  if  there 
was  no  power  in  government  to  prevent  all  service  from  being 
destroyed  .  .  .?  And  finally,  to  what  derision  would  it  not 
reduce  the  proposition  that  government  had  power  to  enforce  the 
duty  of  operation  if  that  power  did  not  extend  to  doing  that 
which  was  essential  to  prevent  operation  from  being  completely 
stopped  .  .  .?" 

The  question  whether  the  statute  was  in  violation  of  the  due 
process  of  law  clause  of  the  Fifth  Amendment  was  considered 
by  the  court  in  a  portion  of  the  opinion  which  need  not  be  treated 
in  detail  here.  It  is  sufficient  to  say  that  the  abridgment  of  the 
freedom  of  contract  which  the  act  entailed  upon  employers  and 
employees  was  found  constitutionally  permissible  because  both 
were  engaged  in  a  business  charged  with  a  public  interest  and 
therefore  subject  to  types  of  congressional  regulation  which 
could  not  be  imposed  upon  any  business  except  public  utilities. 

It  is  important  to  notice  that  the  opinion  of  Chief  Justice 
White  marks  out  an  entirely  new  boundary  line  for  the  exercise 
by  Congress  of  its  police  power  over  interstate  commerce  for  the 
purpose  of  protecting  that  commerce  from  obstruction  or  suspen- 
sion. In  the  earlier  cases  in  which  the  court  had  been  obliged  to 
decide  whether  or  not  a  statute  purporting  to  regulate  commerce 
actually  did  so,  it  was  the  subject  matter  of  the  regulation  which 
was  examined.  If  the  provisions  of  the  statute  bore  a  reasonable 
and  direct  relationship  to  interstate  commerce,  then,  in  the  ab- 
sence of  other  constitutional  defects,  it  was  held  a  valid  regulation 
of  commerce ;  if  not,  it  was  held  invalid.  It  will  be  recalled  that 


THE  NATIONAL  POLICE  POWER  317 

Mr.  Justice  Harlan  in  the  majority  opinion  in  the  Adair  case!l- 
expressed  the  view  that  the  provisions  of  the  Erdman  Act  which 
made  it  a  penal  offense  for  an  interstate  carrier  to  discharge  an 
employee  because  of  his  membership  in  a  labor  organization  did 
not  have  a  sufficiently  close  relationship  to  interstate  commerce 
to  make  it  a  valid  regulation  thereof.  Various  other  attempts  of 
Congress  to  regulate  commerce  have  suffered  the  same  fate.93 
But  in  considering  whether  or  not  the  Adamson  Act  was  a  bona 
fide  regulation  of  commerce  the  court  paid  practically  no  atten- 
tion to  what  the  law  was  about.  The  mind  of  the  court  was  fixed 
upon  what  would  happen  if  the  law  was  not  passed.  It  was 
urged  upon  the  court  that  the  law  was,  in  effect,  a  regulation  of 
wages  and  as  such  did  not  fall  properly  within  the  scope  of  the 
commerce  power;  The  court  disposed  of  this  objection  by  de- 
claring that  "if  it  be  conceded  that  the  power  to  enact  the  statute 
was  in  effect  the  exercise  of  the  right  to  fix  wages  where,  by 
reason  of  the  dispute,  there  had  been  a  failure  to  fix  by  agree- 
ment, it  would  simply  serve  to  show  the  nature  and  character  of 
the  regulation  essential  to  protect  the  public  right  and  safeguard 
the  movement  of  interstate  commerce,  not  involving  any  denial 
of  the  authority  to  adopt  it."  In  short,  it  is  difficult  to  escape 
the  conclusion  that  the  Supreme  Court  regarded  the  Adamson 
Law  as  a  regulation  of  interstate  commerce,  not  because  it  dealt 
with  the  wages  or  hours  of  labor  of  railroad  employees,  but 
because  its  passage  was  demanded  by  an  organization  which  was 
in  a  position  to  bring  about  a  total  cessation  of  interstate  com- 
merce if  its  demand  was  not  acceded  to.  If  this  is  true,  then 
it  would  seem  to  follow  that  any  legislation  which  forms  the  sub- 
ject matter  of  the  demands  of  a  body  of  individuals  possessing  the 
power  to,  bring  interstate  commerce  to  a  standstill  if  those  de- 
mands are  not  granted,  must  be  regarded  as  a  legitimate  exercise 
of  the  power  of  Congress  to  regulate  commerce,  provided  such 
legislation  does  not  violate  the  due  process  of  law  clause  or  any 
other  specific  constitutional  prohibition.  This  startling  doctrine 
without  doubt  opens  up  some  rather  interesting  possibilities  in 
the  way  of  broadening  the  scope  of  the  national  police  power 
under  the  commerce  clause. 

The  majority  opinion  in  Wilson  v.  New  is  also  interesting 

92  Note  25,  supra. 

93  Supra,  p.  298. 


318  MINNESOTA  LAW  REVIEW 

because  it  asserts  unequivocally  that  Congress  could,  without 
exceeding  its  constitutional  powers,  enact  a  new  type  of  police 
regulation  under  the  commerce  clause:  namely,  a  law  providing 
for  the  compulsory  arbitration  of  disputes  between  interstate 
carriers  and  their  employees.  In  fact,  Chief -Justice  White  took 
the  point  of  view  that  the  Adamson  Act  was  in  effect  the  award 
of  a  tribunal  before  which  the  railroads  and  the  brotherhoods 
had  been  compelled  to  arbitrate  their  differences.  Instead  of 
creating  special  machinery  for  such  arbitration,  Congress  itself 
served  as  the  arbitral  tribunal  and  enacted  its  award  into  law. 
"We  are  of  opinion,"  declared  the  chief  justice,  "that  .  .  . 
the  act  which  is  before  us  was  clearly  within  the  legislative  power 
of  Congress  to  adopt,  and  that,  in  substance  and  effect,  it 
amounted  to  an  exercise  of  its  authority  under  the  circumstances 
disclosed  to  compulsorily  arbitrate  the  dispute  between  the  parties 
by  establishing  as  to  the  subject  matter  of  that  dispute  a  legisla- 
tive standard  of  wages  operative  and  binding  as  a  matter  of  law 
upon  the  parties, — a  power  none  the  less  efficaciously  exerted 
because  exercised  by  direct  legislative  act  instead  of  by  the  en- 
actment of  other  and  appropriate  means  providing  for  the  bring- 
ing about  of  such  result."  While  it  was  unnecessary  to  the 
decision  of  the  case  for  the  court  to  state  whether  or  not  it  would 
regard  the  general  scheme  of  compulsory  arbitration  applicable 
to  interstate  carriers  constitutional,  the  dictum  was  couched  in 
such  language  and  the  underlying  principle  of  the  whole  case  is 
such  as  to  leave  little  room  for  doubt  that  the  court  would  regard 
such  a  system  as  a  legitimate  exercise  of  the  power  to  regulate 
commerce.  Congress  has  enacted  several  laws  aimed  to  provide 
facilities  for  the  arbitration  of  labor  disputes  affecting  interstate 
commerce,94  but  it  has  never  made  it  obligatory  upon  the  parties 
to  such  disputes  to  arbitrate ;  these  laws  providing  for  mediation, 
conciliation,  and  voluntary  arbitration  are  not,  therefore,  police 
regulations  in  the  sense  in  which  that  term  is  used  in  this  article, 
since  they  subject  no  one  to  restraint  or  compulsion.  It  seems 
clear,  however,  in  light  of  the  utterances  of  the  court  in  Wilson 
v.  Nezv,  that  the  continuance  of  the  voluntary  system  of  arbitra- 
tion is  a  matter  to  be  settled  by  legislative  discretion  alone,  and 
that  as  soon  as  Congress  deems  it  expedient  an  effective  system  of 

9*  Act  of  October  1,  1888,  25  Stat.  at  L.  501 ;  Act  of  June  1,  1898,  30 
Stat.  at  L.  424;  Act  of  July  15,  1913,  38  Stat.  at  L.  738. 


THE  NATIONAL  POLICE  POWER  319 

compulsory  arbitration  could  be  put  into  force  without  violating 
any  provision  of  the  constitution. 

By  way  of  summary  of  the  ground  covered  thus  far,  it  is  ap- 
parent that  no  insignificant  amount  of  legislation,  social  and 
economic  in  character,  legislation  which  may  properly  be  called 
national  police  legislation,  has  been  passed  by  Congress  in  pur- 
suance of  its  authority  to  protect  and  promote  interstate  com- 
merce. In  order  to  protect  the  lives,  limbs,  and  property  of  those 
who  are  concerned  with  interstate  commerce  as  passengers,  ship- 
pers, or  employees,  Congress  has  enacted  a  most  elaborate  series 
of  provisions  relating  to  the  physical  appliances  and  regulations 
necessary  to  insure  such  safety.  For  the  same  purpose  Congress 
has  regulated  in  various  ways  the  conditions  under  which  the  em- 
ployees engaged  in  interstate  commerce  shall  do  their  work.  And 
the  courts  have  taken  a  rather  generous  view  of  the  amount  of 
such  welfare  legislation  which  may  be  justified  constitutionally 
upon  the  theory  that  it  promotes  the  safety,  reliability,  and  effi- 
ciency of  interstate  commerce.  Finally,  in  order  to  prevent  the 
obstruction  of  interstate  commerce,  Congress  has  been  forced  to 
deal  with  the  complex  problem  of  monopolies  and  combinations 
in  restraint  of  trade,  has  imposed  restrictions  upon  the  freedom 
of  action  of  organized  labor,  and,  where  collective  bargaining  has 
broken  down,  has  assumed  the  role  of  an  arbiter  in  disputes 
between  labor  and  capital.  In  short,  congressional  responsibility 
for  the  safe,  free,  uninterrupted  flow  of  commerce  between  the 
states  carries  with  it  the  constitutional  authority  to  legislate  upon 
a  wide  range  of  problems,  not  commonly  regarded  as  commercial 
in  character,  which  vitally  affect  the  national  safety  and  welfare. 


THE  NATIONAL  POLICE  POWER  381 


THE  NATIONAL  POLICE  POWER 

UNDER  THE 
COMMERCE  CLAUSE  OF  THE  CONSTITUTION* 

II.     REGULATIONS  BARRING  THE  USE  OF  INTERSTATE  COMMERCE 

As  A  CONDUIT  FOR  INJURIOUS  COMMODITIES  AND 

AN  AID  IN  ILLICIT  TRANSACTIONS 

ALTHOUGH  Congress  in  its  efforts  to  protect  the  national 
health,  morals,  and  general  welfare  has  been  compelled  to  use  a 
process  of  indirection  and  has  had  to  do  good  not  merely  by 
stealth  but  by  subterfuge,  the  result  has  been  that,  under  its 
specific  grants  of  power  to  regulate  interstate  commerce,  to  tax, 
and  to  maintain  a  postal  system,  Congress  has  succeeded  in  lay- 
ing a  compelling  or  restraining  hand  upon  numerous  abuses,  has 
wrestled  with  a  considerable  variety  of  economic  and  social  prob- 
lems, and  has,  accordingly,  exercised  a  police  power  that  has  been 
real  and  substantial.  By  far  the  greatest  number  of  those  acts 
of  Congress,  which,  even  though  labeled  interstate  commerce  or 
tax  or  postal  regulations,  are  really  police  enactments  in  disguise, 
have  been  passed  under  the  authority  to  regulate  commerce ;  a 
group  of  these,  those  passed  to  protect  interstate  commerce  from 
danger  or  obstruction,  have  been  discussed  in  the  previous  por- 
tion of  this  article.  There  remain  still  to  be  discussed  three 
main  groups  of  police  regulations  passed  under  the  sanction  of 
the  commerce  clause :  those  forbidding  the  use  of  interstate  com- 
merce as  a-  channel  for  transactions  that  menace  the  national 
health,  morals,  or  general  welfare ;  those  passed  to  co-operate 
with  the  states  by  forbidding  the  use  of  the  facilities  of  inter- 
state commerce  for  the  purpose  of  evading  or  violating  state 
police  regulations ;  and  finally  the  Child-Labor  Law,  by  which 
Congress  sought  to  deny  the  privileges  of  interstate  commerce 
to  articles  produced  under  conditions  of  which  Congress  did  not 
approve. 

*  Continued  from  3  MINNESOTA  LAW  REVIEW  319. 


382  MINNESOTA  LAW  REVIEW 

It  has  been  made  clear  that  Congress  has  full  right  under  its 
power  "to  regulate  commerce  ....  among  the  several 
states''  to  protect  that  commerce  from  danger  and  obstruction ; 
and  the  Supreme  Court  has  found  it  possible  to  uphold  the 
Employers'  Liability  Act  as  necessary  to  protect  commerce  from 
railway  accidents,  and  the  Adamson  Eight-Hour  Law  as  neces- 
sary to  keep  commerce  from  being  obstructed.  But  if  Congress 
\vere  limited  in  its  power  over  interstate  commerce  merely  to  the 
protection  of  that  commerce,  then  a  good  many  abuses  and 
dangers  arising  from  or  augmented  by  interstate  commerce  would 
be  left  unremedied.  But  Congress  has  not  felt  itself  so  circum- 
scribed. It  has  regarded  as  a  proper  use  of  its  authority  over 
commerce  not  only  the  protection  of  commerce  itself  but  also 
>jlthe  protection  of  the  public  from  the  misuse  of  that  commerce. 
One  of  the  most  interesting  and  important  steps  in  the  develop- 
ment of  a  national  police  power  under  the  commerce  clause  has 
been  the  enactment  of  a  group  of  laws  by  which  the  channels  of 
interstate  commerce  have  been  closed  to  commodities  or  trans- 
actions which  are  injurious,  not  to  that  commerce  or  to  any  of 
the  agencies  or  facilities  thereof,  but  to  the  health,  morals,  safety, 
and  general  welfare  of  the  nation.  When  Congress  punishes 
the  man  who  ships  across  a  state  line  bottles  of  colored  water 
declared  by  their  labels  to  be  a  cure  for  cancer,  it  does  so  not 
because  those  bottles  are  a  whit  more  dangerous  to  commerce 
than  would  be  a  consignment  of  shoes,  but  because  it  desires  to 
prevent  the  facilities  of  commerce  from  being  used  as  a  means  of 
distributing  goods  which  are  a  fraud  upon  the  people  who  buy 
and  use  them.  When  Congress  makes  it  a  felony  to  transport 
a  woman  from  one  state  to  another  for  immoral  purposes,  it  does 
so  not  because  it  is  more  dangerous  or  injurious  to  an  interstate 
carrier  to  carry  a  prostitute  than  to  carry  a  clergyman,  but 
because  it  is  undesirable  to  have  interstate  carriers  used  as  tools 
or  agencies  by  those  engaged  in  the  white  slave  traffic. 

There  ought  to  be  no  difficulty  in  concluding  that  the  authority 
to  pass  such  laws  is  reasonably  implied  from  the  plenary  power  of 
Congress  to  regulate  commerce.  When  a  man  is  given  charge 
of  a  gun  or  an  axe  he  is  expected  not  merely  to  keep  it  in  repair 
and  protect  it  from  damage :  he  is  expected  also  to  see  that  it  is 
not  placed  at  the  disposal  of  those  who  desire  to  use  it  in  com- 
mitting murder  or  in  destroying  other  people's  property.  What- 
ever controversy  may  arise  as  to  the  power  of  Congress  to  pro- 


THE  NATIONAL  POLICE  POWER  383 

hibit  or  restrict  under  certain  circumstances  the  shipment  in 
interstate  commerce  of  commodities  which  are  legitimate  and 
wholesome  and  are  destined  for  legitimate  and  wholesome  uses, 
there  ought  to  be  no  serious  doubt  about  the  congressional 
authority  to  keep  "the  arteries  of  interstate  commerce  from 
being  employed  as  conduits  for  articles  hurtful  to  the  public 
health,  safety,  or  morals."1 

The  police  regulations  thus  enacted  by  Congress  to  prevent 
the  use  of  commerce  for  improper  purposes  may  be  grouped 
under  three  heads :  first,  those  designed  to  protect  the  public 
morals ;  second,  those  aimed  to  protect  the  public  health ;  third, 
those  intended  to  protect  the  public  from  deception  and  fraud. 
Each  of  these  groups  may  be  considered  briefly. 

1.  Acts  Under  the  Commerce  Clause  Protecting  Public 
Morals,  (a)  Exclusion  of  Lottery  Tickets:  It  would  be  difficult 
to  point  to  any  problem  about  which  the  moral  judgment  of  the 
American  people  has  changed  so  radically  and  in  so  short  a  time 
as  it  has  in  respect  to  lotteries.  During  the  first  few  decades 
of  our  history  lotteries  were  looked  upon  as  perfectly  proper 
forms  of  private  enterprise,  and  even  as  useful  fiscal  agencies  for 
augmenting  the  revenue  of  the  state  and  nation.2  At  the  present 
time  lotteries  are  thoroughly  and  almost  universally  discredited; 
and  rigorous  provisions  prohibiting  them  are  to  be  found  on  the 
statute  books  and  even  in  the  constitutions  of  a  great  majority 
of  the  states."  In  1895  Congress  lent  its  aid  to  the  cause  of  the 
suppression  of  lotteries  by  passing  an  act  which  prohibited  the 
introduction  or  the  carriage  of  lottery  tickets  in  the  United  States 
mails  or  in  interstate  commerce.4  This  interesting  statute  was 
apparently  passed  with  two  purposes  in  view.  One  purpose  was 
the  desire  to  strike  a  blow  indirectly,  through  the  power  of  Con- 
gress over  interstate  commerce  and  the  mails,  at  an  evil  over 
which  the  constitution  of  the  United  States  gave  Congress  no 
direct  authority.  A  second  purpose  was  to  prevent  the  anti- 

1  This  apt  phrase  is  borrowed  from  the  brilliant  article  by  Senator  Knox 
on  Development  of  the  Federal  Power  to  Regulate  Commerce.     See  17  Yale 
Law  Jour.  135  (1908). 

2  An  elaborate  account  of  this  is  to  be  found  in  an  article  by  A.  R.  Spof- 
ford,  Lotteries  in  American  History.  Annual  Rep.  of  Amer.  Hist.  Assoc., 
1892. 

3  An  exhaustive  analysis  of  these  state  provisions  and  the  cases  constru- 
ing them  is  to  be  found  in  Homer  v.  United  States,  (1893)  147  U.-  S.  449, 
13  S.  C.  R.  409,  37  L.  Ed.  237.     At  present  probably  every  American  state 
forbids  them.     17  R.  C.  L.  1212. 

4  March  2.  1895,  28  Stat.  at  L.  963.     This  now  forms  Sec.  237  of  the 
criminal  code  of  the  United  States.  March  9,  1909,  35  Stat.  at  L.  1136. 


384  MINNESOTA  LAW  REVIEW 

lottery  statutes  of  the  various  states  from  being  rendered  inef- 
fective by  permitting  the  introduction  of  lottery  tickets  into  the 
states  through  interstate  commerce  and  the  mails,  channels  be- 
yond the  reach  of  the  police  power  of  any  state  legislature. 

It  was  not  until  1903  that  the  Supreme  Court  of  the  United 
States  passed  upon  the  constitutionality  of  the  Lottery  Act.5  So 
important  and  difficult  did  the  court  regard  the  problems  involved 
that  it  had  the  case  argued  three  times  before  rendering  its  final 
decision,  and  then  decided  it  by  a  vote  of  five  to  four.  Some  of 
the  most  distinguished  members  of  the  American  bar  appeared 
on  the  brief  attacking  the  statute.  Two  distinct  questions  were 
raised  in  this  case :  first,  are  lottery  tickets  commodities  or  articles 
of  commerce  within  the  meaning  of  the  constitution;  second, 
granted  that  they  are,  does  the  power  which  Congress  possesses 
to  "regulate''  commerce  include  the  power  to  prohibit  commerce 
in  such  commodities? 

The  court  answrered  both  these  questions  in  the  affirmative. 
It  decided,  first,  that  lottery  tickets  are  articles  of  commerce, 
and,  second,  that  their  exclusion  from  interstate  commerce  is  a 
proper  exercise  of  the  power  to  regulate  that  commerce.  While 
it  is  unnecessary  to  the  present  discussion  to  comment  upon  the 
first  of  these  questions,  it  will  be  interesting  to  examine  briefly 
the  reasons  which  led  the  majority  of  the  court  to  this  second 
conclusion.  "In  the  first  place,"  declared  the  court,  speai<ing 
through  Mr.  Justice  Harlan,  "in  determining  whether  regulation 
may  not  under  some  circumstances  properly  take  the  form  or 
have  the  effect  of  prohibition,  .the  nature  of  the  interstate  traffic 
which  it  was  sought  by  the  act  of  March  2,  1895,  to  suppress, 
cannot  be  overlooked."  Then  follow  the  views  of  the  court  upon 
the  menace  of  lotteries.  Quoting  from  one  of  its  previous  deci- 
sions,0 it-  asserted  that  "Experience  has  shown  that  the  common 
forms  of  gambling  are  comparatively  innocuous  when  placed  in 
contrast  with  the  widespread  pestilence  of  lotteries.  The  former 
are  confined  to  a  few  persons  and  places,  but  the  latter  infests 
the  whole  community;  it  enters  every  dwelling;  it  reaches  every 
class;  it  preys  upon  the  hard  earnings  of  the  poor;  it  plunders 


5  The  Lottery  Case    (Champion  v.  Ames),    (1903)    188  U.  S.  321,  23 
S.  C.  R.  321.  47  L.  Ed.  492.     This  case  involved  only  the  validity  of  the 
exclusion  of  lottery  tickets  from  interstate  commerce :  their  exclusion  from 
the  mails  had  been  sustained  in  earlier  decisions.     See  infra  pp.  386-387 
and  note  7. 

6  Phalen  v.  Virginia,  (1849)  8  How.  (U.  S.)  163,  168,  12  L.  Ed.  1030. 


THE  NATIONAL  POLICE  POWER  385 

the  ignorant  and  simple."  The  second  step  in  the  court's  argu- 
ment is  that  Congress  by  virtue  of  its  plenary  power  to  regulate 
commerce  among  the  states  may  "provide  that  such  commerce 
shall  not  be  polluted  by  the  carrying  of  lottery  •  tickets"  unless 
some  constitutional  restriction  can  be  found  to  stand  in  the  way. 
"What  clause,"  inquires  Mr.  Justice  Harlan,  "can  be  cited  which, 
in  any  degree,  countenances  the  suggestion  that  one  may,  of  right, 
carry  or  cause  to  be  carried  from  one  state  to  another  that  which 
will  harm  the  public  morals?"  The  only  possible  clause  of  the 
constitution  which  might  be  so  invoked  is  that  which  forbids 
the  deprivation  of  any  person's  liberty  without  due  process  of 
law.  "But  surely  it  will  not  be  said  to  be  a  part  of  anyone's 
liberty,  as  recognized  by  the  supreme  law  of  the  land,  that  he 
shall  be  allowed  to  introduce  into  commerce  among  the  states 
an  element  that  will  be  confessedly  injurious  to  the  public  morals. 
.  .  .  .  It  is  a  kind  of  traffic  which  no  one  can  be  entitled  to 
pursue  as  of  right."  In  the  third  place,  the  court  disposes  of 
the  contention  that  the  Lottery  Act,  by  establishing  regulations 
of  the  internal  affairs  of  the  several  states,  violated  the  Tenth 
Amendment,  which  reserves  to  the  states  or  to  the  people  all 
powers  not  delegated  to  the  United  States.  The  court  held,  to 
begin  with,  that  this  contention  overlooks  the  fact  that  the  Lottery 
Act  is  a  regulation  of  commerce  and  that  the  power  to  regulate 
commerce  is  specifically  given  "to  Congress  by  the  constitution. 
But,  aside  from  that,  the  act  does  not  purport  to  suppress  the 
traffic  in  lottery  tickets  which  is  carried  on  entirely  within  the 
limits  of  a  state,  but  only  that  traffic  which  is  interstate.  Further- 
more, instead  of  invading  the  proper  field  of  police  regulation 
and  usurping  the  powers  of  control  over  the  morals  of  the  people 
of  the  state — 

"Congress  only  supplemented  the  action  of  those  states — 
perhaps  all  of  them — which,  for  the  protection  of  the  public 
morals,  prohibit  the  drawing  of  lotteries,  as  well  as  the  sale  or 
circulation  of  lottery  tickets,  within  their  respective  limits.  It 
said,  in  effect,  that  it  would  not  permit  the  declared  policy  of 
the  states,  which  sought  to  protect  their  people  against  the  mis- 
chiefs of  the  lottery  business,  to  be  overthrown  or  disregarded 
by  the  agency  of  interstate  commerce.  We  should  hesitate  long 
before  adjudging  that  an  evil  of  such  appalling  character,  carried 
on  through  interstate  commerce,  cannot  be  met  and  crushed  by 
the  only  power  competent  to  that  end.  We  say  competent  to 
that  end,  because  Congress  alone  has  the  power  to  occupy,  by 
legislation,  the  whole  field  of  interstate  commerce." 


386  MINNESOTA  LAW  REVIEW 

After  noticing  as  precedents  or  analogies  some  of  the  other 
instances  in  which  congressional  regulations  of  commerce  have 
taken  the  form  of  prohibition, — namely,  the  prohibition  of  the 
interstate  transportation  of  diseased  cattle,  the  prohibitions  com- 
prising the  Sherman  Anti-Trust  Act,  and  the  prohibition  resulting 
from  the  operation  of  the  Wilson  Act  of  1890,  which  subjected 
to  state  police  control  interstate  shipments  of  liquor  upon  their 
arrival  within  the  state — the  court  takes  particular  pains  to  make 
clear  the  limited  scope  of  this  important  decision.  This  case 
does  not  at  all  establish  the  right  of  Congress  to  "exclude  from 
commerce  among  the  states  any  article,  commodity,  or  thing, 
of  whatever  kind  or  nature,  or  however  useful  or  valuable, 
which  it  may  choose,  no  matter  with  what  motive.  .  .  ." 
The  court  will  consider  such  arbitrary  exclusions  from  inter- 
state commerce  only  when  it  is  necessary  to  do  so.  "The  whole 
subject  is  too  important,  and  the  questions  suggested  by  its  con- 
sideration are  too  difficult  of  solution  to  justify  any  attempt  to 
lay  down  a  rule  for  determining  in  advance  the  validity  of  every 
statute  that  may  be  enacted  under  the  commerce  clause.  We  decide 
nothing  more  in  the  present  case  than  that  lottery  tickets  are  sub- 
jects of  traffic  among  those  who  choose  to  sell  or  buy  them ;  that 
the  carriage,  of  such  tickets  by  independent  carriers  from  one 
state  to  another  is  therefore  interstate  commerce :  that  under  its 
power  to  regulate  commerce  among  the  several  states  Congress — 
subject  to  the  limitations  imposed  by  the'  constitution  upon  the 
exercise  of  the  powers  granted — has  plenary  authority  over  such 
commerce,  and  may  prohibit  the  carriage  of  such  tickets  from 
state  to  state ;  and  that  legislation  to  that  end,  and  of  that  char- 
acter, is  not  inconsistent  with  any  limitation  or  restriction  imposed 
upon  the  exercise  of  the  powers  granted  to  Congress." 

The  Lottery  Case  was  decided  by  a  divided  court  with  four 
justices  dissenting.  The  dissenting  opinion,  written  by  Chief 
Justice  Fuller,  was  based  on  the  conviction  of  the  minority  that 
lottery  tickets  were  not  articles  of  commerce  and  that,  even  if 
they  were,  the  power  to  regulate  interstate  commerce  does  not 
carry  with  it  the  absolute  power  to  prohibit  the  transportation 
of  articles  of  commerce.  It  was  pointed  out  that  when  the  court 
held  that  exclusion  of  lottery  tickets  from  the  mails  was  a  proper 
exercise  of  the  power  of  Congress  over  the  postal  system  it  had 
been  expressly  said  that  Congress  did  not  have  the  power  to  ex- 
clude from  transportation  in  interstate  commerce  articles  which 


THE  NATIONAL  POLICE  POWER  387 

it  might  properly  exclude  from  the  mails.7  This  dissent  is  also 
interesting  because  it  specifically  states  that  Congress  does  not 
have  as  extensive  power  over  interstate  commerce  as  it  does  over 
foreign  and  Indian  commerce.  "There  is  no  reservation  of  police 
power  or  any  other  to  a  foreign  nation  or  to  an  Indian  tribe, 
and  the  scope  of  the  power  is  not  the  same  as  that  over  interstate 
commerce."  Consequently  the  instances  in  which  Congress  has 
excluded  various  articles  from  importation  or  from  traffic  with 
the  Indian  tribes  do  not  serve  as  precedents  for  similar  restric- 
tions upon  interstate  commerce.8 

The  decision  in  the  Lottery  Case  has  been  discussed  at  length 
because  it  was  in  a  sense  a  pioneer  decision,  because  it  has  had  a 
profound  influence  upon  the  subsequent  development  of  the  na- 
tional police  power,  and  because,  in  spite  of  Mr.  Justice  Harlan's 
warning  against  making  unwarranted  deductions  from  it,  it  has 
been  regarded  by  many  as  establishing  a  doctrine  regarding  the 
power  of  Congress  to  prohibit  various  kinds  of  interstate  com- 
merce which  is  far  more  revolutionary  than  it  was  the  expressed 
purpose  of  the  court  to  sanction.  It  is  quite  as  important  to  keep 
clearly  in  mind  the  things  which  the  Lottery  Case  does  not  hold 
as  it  is  to  remember  the  things  which  it  does.  In  the  first  place, 
it  does  not  hold  that  Congress  has  the  same  power  to  exclude 
articles  from  interstate  commerce  that  it  has  to  exclude  them 
from  importation  in  foreign  commerce.  It  already  has  been  sug- 
gested that  this  view  was  urged  upon  the  court  by  counsel  for 
the  government,  but  that  the  decision  carefully  avoided  any 
expression  of  opinion  regarding  it.9  In  the  second  place,  it  does 
not  hold  that  Congress  may  exclude  anything  from  interstate 
commerce  except  those  commodities  the  distribution  of  which 
menaces  the  public  health,  morals,  or  safety.  Finally,  it  does  not 
hold  that  Congress  has  the  power  to  exclude  harmless  and  legiti- 
mate commodities  or  transactions  from  interstate  commerce 
merely  because  such  exclusions  would  result  in  a  needed  or  de- 
sirable protection  to  the  public  health,  safety,  or  morals.  It  does 
not,  therefore,  establish  a  precedent  for  the  recently  invalidated 
Child-Labor  Law.  It  merely  upholds  the  exclusion  of  such  com- 


7  In  re  Rapier,  (1892)  143  U.  S.  110,  12  S.  C.  R.  374,  36  L.  Ed.  93.    Ex 
parte  Jackson,  (1877)  96  U.  S.  727,  24  L.  Ed.  877. 

8  The  Lottery  Case  is  severely  criticized  in  an  article  by  W.  A.  Suther- 
land, Is  Congress  a  Conservator  of  the  Public  Morals?   (1904)  38  Amer. 
Law  Rev.  194. 

9  See  first  section  of  this  article,  3  MINNESOTA  LAW  REVIEW  301. 


388  MINNESOTA  LAW  REVIEW 

modities  as  are  themselves  by  their  nature  and  effects  a  menace 
to  the  public  welfare. 

(b)  Exclusion  of  Obscene  Matter:  The  use  of  the  power  of 
Congress  to  regulate  commerce  for  the  purpose  of  suppressing 
the  circulation  of  obscene  literature  or  pictures  dates  back  to  the 
year  1842.10  However,  this  early  statute  merely  forbade  the  im- 
portation of  obscene  matter  into  this  country  from  abroad.  As 
time  went  on  the  scope  of  this  legislation  was  expanded  to  include 
within  its  prohibitions  not  only  obscene  literature  and  prints  but 
also  contraceptive  devices,  drugs,  and  information.11  But  it  was 
not  until  1897  that  Congress  finally  penalized  the  distribution  of 
such  literature  and  articles  through  the  channels  of  interstate 
commerce.12  With  some  slight  modifications,  this  statute  forms 
a  part  of  the  present  criminal  code  of  the  United  States.13  The 
act  contains  the  two  fairly  distinct  types  of  prohibition  already 
in  the  earlier  statutes.  In  the  first  place,  it  makes  it  a  crime  to 
deposit  with  any  common  carrier  for  the  purpose  of  interstate 
transportation  any  obscene  literature,  pictures,  images,  or  articles.1 
In  the  second  place,  it  excludes  from  interstate  commerce  in  the 
same  way  all  articles  or  drugs  designed  to  prevent  conception  or 
to  produce  illegal  abortions  and  all  literature  or  advertisements 
containing  contraceptive  information  or  telling  where  the  articles 
or  information  may  be  secured. 

It  is  quite  clear  that  the  purpose  of  this  legislation  was  to 
protect  the  public  morals  and  not  to  protect  interstate  commerce. 
Certainly  that  commerce  is  in  no  greater  danger  of  destruction, 
loss,  or  interference  from  the  transportation  of  obscene  literature 
than  it  is  from  the  transportation  of  Bibles.  In  passing  these 
laws  Congress  aimed  to  prevent  interstate  commerce  from  being 
used  as  a  medium  for  distributing  articles  or  printed  matter  which 
it  regarded  as  morally  degrading. 

While  the  Supreme  Court  of  the  United  States  has  never 
passed  squarely  upon  the  constitutionality  of  this  legislation,  it 
has  cited  with  approval  the  decision  of  a  lower  federal  court 
which  held  it  valid,1*  so  that  the  constitutional  soundness  of  such 


10  Act  of  August  30,  1842,  5  Stat  at  L.  562.  Sec.  28. 

11  Act*  of  March  2,  1857,  11  Stat.  at  L.  168 :  March  3,  1873,  17  Stat.  at  L. 
598:  March  3,  1883,  22  Stat.  at  L.  489;  October  3,  1913.  38  Stat.  at  L.  194. 

12  Act  of  February  8,  1897,  29  Stat.  at  L.  512. 

13  March  4,,  1909 :  35  Stat.  at  L.  1138,  Sec.  245. 

14  Hoke  v.  United  States,  (1913)  227  U.  S.  308.  33  S.  C.  R.  281,  57  L.  Ed. 
523. 


THE  NATIONAL  POLICE  POWER  389 

use  of  the  commerce  power  may  be  said  to  have  passed  into  the 
realm  of  settled  law.    That  part  of  the  statute  which  forbids  the 
transmission  through  interstate  commerce  of  contraceptive  ar- 
ticles or  information  was  the  first  to  be  subjected  to  judicial 
scrutiny,  and  its  validity  was  sustained  by  the  United   States 
district  court  in  the  case  of   United  States  v.  Popper.™     The 
statute  was  attacked  primarily  upon  the  ground  that  Congress 
was  without  constitutional  authority  to  pass  it,  since  it  dealt  with 
the  internal  affairs  of  the  states  and  invaded,  therefore,  the  field 
of  legislative  authority  reserved  to  the  states  by  the  Tenth  Amend- 
ment.    The  court  disposed  of  the  contention  with  a  confident 
directness  and  brevity  of  argument  that  is  in  striking  contrast  to 
the  labored  treatment  which  the  principle  involved  usually  re- 
ceived in  other  cases.    The  power  to  regulate  commerce  "includes 
power  to  declare  what  property  or  things  may  be  the  subjects  of 
commerce."     The  power  of  Congress  to  prohibit  commerce  in 
certain  commodities  with  the  Indian  tribes  has  long  been  recog- 
nized.16   In  the  License  Cases  Chief  Justice  Taney  asserted  that 
the  power  of  Congress  to  regulate  the  commerce  with  foreign 
nations  conferred  the  authority   to   "prescribe   what  articles  of 
merchandise  shall  be  admitted  and  what  excluded,"  and  also  de- 
clared that  the  power  to  regulate  interstate  commerce  was  equal 
in  scope  to  the  power  to  regulate  foreign  commerce.17    It  follows, 
therefore,  that  under  its  power  over  interstate  commerce  Con- 
gress has  the  power  to  prohibit  the  transportation  of  articles 
designed  for  immoral  use. 

It  is  interesting  to  notice  that,  while  the  result  reached  in  the 
Popper  case  has  been  regarded  as  correct,  the  theory  upon  which 
the  court  relied  in  reaching  that  result  has  been  tacitly  if  not 
openly  discredited.  That  theory  is  that  Congress  may  exclude 
things  from  interstate  commerce  because  it  niay  exclude  them 
from  foreign- and  Indian  commerce ;  and  it  has  already  been  made 
clear18  not  only  that  the  Supreme  Court  in  deciding  the  Lottery 
Case  refused  to  make  any  use  of  the  argument  that  the  power,  of 
Congress  over  foreign  and  interstate  commerce  is  the  same,  but 
also  that  a  growing  body  of  legal  opinion  has  been  won  over  to 
the  view  that  the  two  powers  are  quite  different  in  scope.  No 

is  (1899)  98  Fed.  423. 

16  Citing  United  States  v.  Holliday,  (1866)  3  Wall.  (U.  S.)  407,  18  L.  Ed. 
182. 

i?  (1847)  5  How.  (U.  S.)  577,  12  L.  Ed.  256. 
1S  Supra,  p.  387. 


390  MINNESOTA  LAW  REVIEW 

other  case  has  been  found  in  which  the  reasoning  of  the  court  in 
this  case  has  been  followed. 

That  portion  of  the  act  of  1897  relating  to  the  exclusion  of 
obscene  literature  from  interstate  commerce  was  held  constitu- 
tional in  a  case  in  the  United  States  circuit  court  of  appeals  in 
1914.19  The  opinion  in  this  case  does  not  call  for  extended  com- 
ment. The  contention  that  congressional  authority  does  not 
extend  to  the  prohibition  of  commodities  from  interstate  com- 
merce was  met  by  the  citation  of  the  cases  in  which  the  Supreme 
Court  had  upheld  the  power  of  Congress  to  prohibit  the  inter- 
state transportation  of  lottery  tickets,  diseased  cattle,  and  women 
for  immoral  purposes.  The  argument  that  the  statute  violated 
the  First  Amendment  by  abridging  the  freedom  of  the  press  was 
disposed  of  with  the  succinct  remark  that  "we  think  that  the  free- 
dom of  the  press  has  enough  to  answer  for  without  making  it  a 
protecting  shield  for  the  commission  of  crime." 

(c)  The  White  Slave  Act:  In  1910  Congress  enacted  the 
famous  Mann  Act,  which  bore  the  title,  "An  Act  Further  to 
Regulate  Interstate  and  Foreign  Commerce  by  Prohibiting  the 
Transportation  Therein  for  Immoral  Purposes  of  Women  and 
Girls,  and  for  Other  Purposes."20  Here  again  Congress  was  not 
protecting  interstate  commerce  from  any  dangers,  direct  or  in- 
direct, which  menaced  that  commerce ;  the  safety  and  efficiency  of 
interstate  commerce  is  not  dependent  upon  the  private  morality 
of  the  passengers  on  interstate  trains.  The  purpose  of  the  statute 
was  to  strike  a  blow  at  the  white  slave  traffic  by  refusing  to  allow- 
interstate  commerce  to  be  used  any  longer  as  a  means  of  assisting 
those  who  promote  the  nefarious  system  of  commercialized  vice. 

The  Mann  Act  was  held  constitutional  by  the  Supreme  Court 
in  1913  in  the  case  of  Hoke  v.  United  States.-1  The  statute  was 
attacked  on  the  ground  that  it  violated  the  privileges  and  im- 
munities of  citizens  of  the  United  States  by  denying  free  right 
of  passage  in  interstate  commerce;  that  it  was  a  perversion  of  the 
power  of  Congress  to  regulate  interstate  commerce  by  exceeding 
unduly  the  proper  scope  of  that  power;  and  on  the  ground  that 
it  contravened  the  Tenth  Amendment  by  invading  the  legitimate 
domain  of  the  police  power  of  the  states  in  an  attempt  to  regulate 
the  private  morals  of  the  people. 

19  Clark  v.  United  States,  (1914)  211  Fed.  916. 

20  June  25,  1910.  36  Stat.  at  L.  825. 

21  227  U.  S:  308,  35  S.  C.  R.  28i,  57  L.  Ed.  523. 


THE  NATIONAL  POLICE  POWER  391 

In  answer  to  the  first  objection,  the  court  denied  that  any 
person  enjoys  a  constitutionally  protected  right  to  use  interstate 
commerce  for  the  furtherance  of  immoral  designs.  "The  con- 
tention confounds  things  important  to  be  distinguished.  It  urges 
a  right  exercised  in  morality  to  sustain  a  right  to  be  exercised  in 
immorality.  ...  It  is  misleading  to  say  that  men  and 
women  have  rights.  Their  rights  cannot  fortify  or  sanction  their 
wrongs ;  and  if  they  employ  interstate  transportation  as  a  facility 
of  their  wrongs,  it  may  be  forbidden  to  them  to  the  extent  of  the 
act  of  June  25,  1910,  and  we  need  go  no  further.  .  .  ." 
The  court  also  disposed  of  the  other  contentions  by  declaring  the 
act  to  be  a  proper  exercise  of  the  power  to  regulate  commerce. 
This  being  the  case  its  effect  on  the  normal  scope  of  state  police 
power  is  quite  irrelevant.  The  court  alluded  in  rather  sweeping 
terms  to  the  police  power  which  Congress  may  legitimately  exer- 
cise through  its  control  over  commerce: 

"The  powers  reserved  to  the  states  and  those  conferred  on 
the  nation  are  adapted  to  be  exercised,  whether  independently  or 
concurrently,  to  promote  the  general  welfare,  material  and  moral. 
This  is  the  effect  of  the  decisions ;  and  surely  if  the  facility  of 
interstate  transportation  can  be  taken  away  from  the  demoraliza- 
tion of  lotteries,  the  debasement  of  obscene  literature,  the  con- 
tagion of  diseased  cattle  or  persons,  the  impurity  of  food  and 
drugs,  the  like  facility  can  be  taken  away  from  the  systematic 
enticement  to  and  the  enslavement  in  prostitution  and  debauchery 
of  women,  and,  more  insistently,  of  girls.  .  . 

"The  principle  established  by  the  cases  is  the  simple  one,  when 
rid  of  confusing  and  distracting  considerations,  that  Congress 
has  power  over  transportation  'among  the  several  States' ;  that 
the  power  is  complete  in  itself,  and  that  Congress,  as  an  incident 
to  it, -may  adopt  not  only  means  necessary  but  convenient  to 
its  exercise,  and  the  means  may  have  the  quality  of  police 
regulations." 

While  the  opinion  of  Mr.  Justice  McKenna  in  the  Hoke  case 
rests  upon  the  same  principle  as  that  upon  which  the  Lottery 
Case  was  decided,  the  language  used  in  certain  portions  above 
quoted  is  broad  enough  in  its  implications  to  sanction  the  doctrine 
that  the  power  to  regulate  interstate  commerce  may  take  the 
form  of  prohibition  not  merely  when  such  prohibition  is  neces- 
sary to  prevent  the  distribution  of  commodities  or  the  consum- 
mation of  transactions  in  themselves  definitely  injurious  to  the 
public  health,  morals,  or  safety,  but  it  may  also  take  the  form  of 
prohibition,  regardless  of  the  character  of  the  things  excluded, 


392  MINNESOTA  LAW  REVIEW 

when  such  prohibition  will  contribute  substantially  to  the  national 
welfare.  It  is  not  surprising,  therefore,  to  find  Mr.  Justice 
McKenna  one  of  the  four  who  dissented  from  the  opinion  of  the 
majority  in  the  case  in  which  the  federal  Child-Labor  Law  was 
held  invalid  ;22  for  his  opinion  in  the  Hoke  case  reflects  the  view 
that  Congress  has  broad  authority  to  use  the  power  to  regulate 
interstate  commerce  in  any  manner  which  will  "promote  the 
general  \velfare,  material  and  moral." 

(d)  Exclusion  of  Prize  Fight  Films:  In  1912  Congress  en- 
acted a  law  excluding  from  foreign  and  interstate  commerce  and 
the  mails  all  prize  fight  films  or  pictures.23  This  was,  of  course, 
merely  another  attempt  to  keep  the  postal  service  and  commerce 
from  serving  as  distributing  agencies  for  goods  which  Congress 
regarded  as  demoralizing  in  effect. 

The  only  portion  of  this  act  which  has  thus  far  been  attacked 
in  the  courts  is  that  which  prohibits  the  importation  of  the  ob- 
jectionable films  from  abroad.  This  was  upheld  by  the  United 
States  Supreme  Court  in  1915  in  the  case  of  Weber  v.  Freed.2* 
In  this  case  the  court  contented  itself  with  the  briefest  possible 
comment  on  the  argument  that  Congress  had  exceeded  its  dele-' 
gated  powers  and  had  invaded  the  domain  of  state  police  legis- 
lation ;  comment  which  culminated  in  the  statement,  "But  in 
view  of  the  complete  power  of  Congress  over  foreign  commerce 
and  its  authority  to  prohibit  the  introduction  of  foreign  articles 
recognized  and  enforced  by  many  previous  decisions  of  this 
court,  the  contentions  are  so  devoid  of  merit  as  to  cause  them  to 
be  frivolous."  While  the  court  gave  no  hint  of  what  its  attitude 
would  be  toward  the  question  of  the  validity  of  the  provision  of 
the  act  forbidding  the  shipment  of  prize  fight  films  in  interstate 
commerce,  the  act  is  so  obviously  identical  in  purpose  and  con- 
stitutional principle  with  the  Lottery  Act,  the  Obscene  Literature 
Act,  and  the  White  Slave  Act,  as  to  leave  no  doubt  whatever 
regarding  its  constitutionality.25 

22  Hammer  v.  Dagenhart,  (1918)  247  U.  S.  251,  38  S.  C.  R.  529,  62  L.  Ed. 
1101. 

23  Act  of  July  31,  1912.  37  Stat.  at  L.  240. 

24  239  U.  S.  325,  36  S.  C.  R.  131,  60  L.  Ed.  308. 

25  In  two  cases  involving  the  validity  of  this  law,  Weber  v.  Freed,  (1915) 
224  Fed.  355,  United  States  v.  Johnson,  (1916)  232  Fed.  970,  the  lower  fed- 
eral courts  argued  that  Congress  could  exclude  the  films  from  foreign  com- 
merce because  its  power  to  exclude  objectionable  articles  from  interstate 
commerce  had  been  so  frequently  sustained.     Such  an  argument  leaves  little 
room  for  doubt  as  to  the  views  of  these  courts  on  the  question  of  the  validity 
of  excluding  the  films  from  interstate  commerce.     After  the  efforts  which 
have  been  made  from  time  to  time  to  prove  that  the  power  of  Congress  to 


THE  NATIONAL  POLICE  POWER  393 

2.  Protection  to  Public  Health.  Congress  has  exercised  a 
national  police  power  by  virtue  of  its  authority  to  regulate  inter- 
state commerce  nowhere  more  frequently  and  nowhere  with 
more  general  public  approval  than  in  the  enactment  of  laws  de- 
signed to  close  the  channels  of  commerce  to  impure,  adulterated, 
or  unhealthful  products  and  to  the  possible  breeders  and  carriers 
of  disease.  By  far  the  greater  portion  of  the  rather  voluminous 
legislation  of  this  type  which  has  been  placed  on  the  federal 
statute  books  has  provoked  neither  serious  discussion  regarding 
its  constitutionality  nor  actual  litigation.  And  while  in  a  few 
instances  these  laws  have  been  squarely  attacked  in  the  courts, 
and  decisions  .sustaining  their  constitutionality  have  been  ren- 
dered, there  have  been  other  cases  in  which  the  court  has  found 
opportunity  to  give  evidence  of  its  approval  of  such  legislation 
only  in  some  collateral  action.  It  is  appropriate  to  the  purpose 
of  this  article  to  consider  only  the  more  interesting  and  important 
of  these  laws  and  the  cases  construing  them,  rather  than  to 
attempt  an  exhaustive  compilation.  It  seems  natural  to  allow 
them  to  fall  into  two  general  classes:  first,  the  acts  excluding 
from  interstate  commerce  impure,  unwholesome,  or  adulterated 
food  or  drugs ;  and,  second,  the  acts  to  prevent  the  spread 
through  the  channels  of  interstate  commerce  of  disease,  infec- 
tion, or  parasites. 

(a)  Exclusion  of  Impure,  Umvholesome,  or  Adulterated 
Food  or  Drugs:  The  forerunners  of  the  more  recent  acts  exclud- 
ing these  objectionable  commodities  from  interstate  commerce 
are  the  laws  forbidding  the  importation  of  such  commodities 
from  abroad.  This  power  Congress  has  exercised  since  1848. 
In  that  year  it  passed  an  act  "to  prevent  the  importation  of 
spurious  and  adulterated  drugs"  and  to  provide  a  system  of 
inspection  to /make  the  prohibition  effective.20  Such  legislation 
guarding  against  the  importation  of  unhealthfully  adulterated 
food,  drugs,  or  liquor  has  been  on  the  statute  books  ever  since.27 
In  1887  the  importation  by  Chinese  of  smoking  opium  was  pro- 


regulate  interstate  commerce  is  as  broad  as  its  power  over  foreign  com- 
merce, it  is  interesting  to  see  the  court  in  the  Johnson  case  arguing  the  other 
way  and  urging  that  "the  constitutional  power  of  Congress  over  commerce 
extends,  not  only  to  interstate,  but  to  foreign  commerce,  and  what  it  may  do 
with  respect  to  the  one  it  may  do  with  respect  to  the  other." 

26  Act  of  June  26.  1848,  9  Stat.  at  L.  237. 

27  See  the  following  acts  :  March  1,  1899,  30  Stat.  at  L.  951 ;  May  25,  1900, 
31  Stat.  at  L.  196;  March  2,  1901,  31  Stat.  at  L.  930;  June  3,  1902,  32  Stat. 
at  L.  296;  March  3,  1905,  33  Stat.  at  L.  874;  June  30,  1906,  34  Stat.  at  L.  684. 


394  MINNESOTA  LAW  REVIEW 

hibited,28  and  subsequent  statutes  passed  in  19092S  and  191430 
made  it  unlawful  for  any  one  to  import  it.  In  1897  Congress 
forbade  the  importation  of  any  tea  "inferior  in  purity,  quality, 
and  fitness  for  consumption"  as  compared  to  a  legal  standard.31 
The  constitutionality  of  this  provision  was  attacked  in  the  courts, 
but  the  act  was  sustained  by  the  Supreme  Court  in  an  opinion 
which  has  become  one  of  the  leading  cases  establishing  the  power 
of  Congress  to  prohibit  the  importation  of  commodities.32 
Ultimately  Congress  began  to  exclude  from  interstate  com- 
merce also  various  types  of  adulterated  and  unwholesome  food 
and  drug  products.  The  earlier  laws  of  this  kind  were  not  very 
comprehensive.  In  1891  an  act  was  passed  which  provided  for 
the  inspection  of  all  live  cattle  destined  for  slaughter  and  intended 
for  export  or  for  shipment  in  interstate  commerce,  and  the  in- 
spection of  such  cattle  after  slaughter,  if  that  was  considered 
necessary ;  and  cattle  or  carcasses  found  to  be  unsound  or  diseased 
were  not  allowed  to  be  shipped  in  interstate  or  foreign  com- 
merce.33 However,  the  shipment  of  cattle  or  meat  which  had 
not  been  inspected  at  all  was  not  forbidden;  a  fact  which  put 
very  obvious  limitations  upon  the  scope  and  effectiveness  of  the 
act.  In  1902  a  statute  was  passed  forbidding  interstate  com- 
merce in  all  viruses,  serums,  toxins,  antitoxins,  and  the  like,  "ap- 
plicable to  the  prevention  of  the  diseases  of  man,"  except  when 


28  Act  of  February  23,  1887,  24  Stat.  at  L.  409. 

29  Act  of  February  9,  1909,  35  Stat.  at  L.  614. 

3<>  Act  of  January  17,  1914,  38  Stat.  at  L.  275.  The  Supreme  Court  up- 
held this  statute  in  Brolan  v.  United  States,  (1915)  236  U.  S.  216,  35  S.  C.  R. 
285,  59  L.  Ed.  541.  The  court  said:  "The  entire  absence  of  all  ground  for 
the  assertion  that  there  was  a  want  of  power  in  Congress  for  any  reason  to 
adopt  the  provision  in  question  is  so  conclusively  foreclosed  by  previous 
decisions  as  to  leave  no  room  for  doubt  as  to  the  wholly  unsubstantial  and 
frivolous  character  of  the  constitutional  question  based  on  such  contention." 

31  Act  of  March  2,  1897,  29  Stat.  at  L.  605. 

32  Buttfield_v.  Stranahan,  (1904)  192  U.  S.  470,  498,  24  S.  C.  R.  349,  356, 
48  L.  Ed.  525,  536.     The  conclusiven^ss  with  which  the  court  settled  the  case 
will  be  apparent  from  the  following  excerpt  from  Mr.  Justice  White's  opin- 
ion:     "Whatever  difference  of  opinion,  if  any,  may  have  existed  or  does 
exist  concerning  the  limitations  of  the  power    [to  regulate  commerce], 
resulting  from  other  provisions  of  the  Constitution,  so  far  as  interstate 
commerce  is  concerned,  it  is  not  to  be  doubted  that  from  the  beginning  Con- 
gress has  exercised  a  plenary  power  in  respect  to  the  exclusion  of  merchan- 
dise brought  from  foreign  countries ;  not  alone  directly  by  the  enactment  of 
embargo  statutes,  but  indirectly  as  a  necessary  result  of  provisions  contained 
in  tariff  legislation.     It  has  also,  in  other  than  tariff  legislation,  exerted  a 
police  power  over  foreign  commerce  by  provisions  which  in  and  of  them- 
selves amounted  to  the  assertion  of  the  right  to  exclude  merchandise  at 
discretion." 

33  Act  of  March  3,  1891,  26  Stat.  at  L.  1089. 


THE  NATIONAL  POLICE  POWER  395 

such  commerce  is  carried  on  by  persons  holding  licenses  from 
the  Department  of  Agriculture,  and  except  when  the  products 
mentioned  conform  to  standards  of  purity  and  effectiveness 
established  by  the  department.34  A  similar  law  was  passed  in 
1913,  applicable  to  serums  used  for  domestic  animals.35  How- 
ever, in  1906,  Congress  approached  in  earnest  the  problem  of 
stopping  the  distribution  and  sale  of  impure  food  and  drugs  in 
so  far  as  its  power  to  regulate  interstate  commerce  gave  it 
authority  to  do  so ;  and  in  that  year  it  passed  two  comprehensive 
and  far-reaching  statutes  known  as  the  Pure  Food  Act36  and  the 
Meat  Inspection  Act.37 

It  is  unnecessary  to  discuss  in  detail  the  provisions  of  these 
acts.  The  Pure  Food  Act  excludes  from  interstate  commerce 
all  adulterated  and  misbranded  food  and  drugs.  Its  definitions 
of  the  terms  "adulterated"  and  "misbranded"  are  broad  enough 
to  include  practically  all  unwholesome  food  and  drug  products 
and  those  fraudulently  compounded  or  labeled.  It  seems  clear 
that  Congress  had  two  purposes  in  mind  in  passing  the  Pure 
Food  Act;  one  was  to  "protect  the  health  of  the  people  by  pre- 
venting the  sale  of  normally  wholesome  articles  to  which  have 
been  added  substances  poisonous  or  detrimental  to  health,"  the 
other  was  to  "protect  purchasers  from  injurious  deceits  by  the 
sale  of  inferior  for  superior  articles.''3.8  Without  attempting  to 
decide  which,  if  either,  of  these  purposes  was  paramount  in  the 
congressional  mind,  it  is  entirely  proper  to  regard  the  act  as  one 
which  aims  to  protect  the  health  of  the  nation. 

After  the  decision  in  the  Lottery  Case,  it  would  hardly  be 
expected  that  the  question  of  the  constitutionality  of  the  Pure 
Food  Act  would  prove  difficult  of  solution.  Several  of  the  lower 
federal  courts  disposed  of  the  question  by  reference  to  the 
authority  of  that  case,39  and  in  the  two  cases  in  which  the  validity 
of  the  act  was  touched  upon  by  the  Supreme  Court  such  validity 
seems  to  have  been  assumed  rather  than  established  by  elaborate 

34  Act  of  July  1,  1902,  32  Stat.  at  L.  728. 

35  Act  of  March  4,  1913,  37  Stat.  at  L.  832. 

36  Act  of  June  30,  1906,  34  Stat.  at  L.  768. 

37  Act  of  June  30,  1906,  34  Stat.  at  L.  674. 

38  From  the  opinion  of  the  court  in  Hall-Baker  Grain  Co.  v.  United 
States,  (1912)  198  Fed.  614. 

39  Shawnee  Milling  Co.  v.  Temple,  (1910)  179  Fed.  517;  United  States  v. 
420  Sacks  of  Flour,   (1910)    180  Fed.  518;  United  States  v.  Seventy-four 
Cases  of  Grape  Juice,  (1910)  181  Fed.  629.     For  an  elaborate  discussion  of 
the  purpose  and  validity  of  the  Act  of  1906.  with  citation  of  cases,  see  Thorn- 
ton, Pure  Food  and  Drugs,  (1912)  Part  II,  Ch.  II. 


396  MINNESOTA  LAW  REVIEW 

argument.  In  the  first  of  these  cases,  The  Hipolite  Egg  Co.  v. 
United  States*0  the  question  arose  whether  the  provisions  of  the 
act  authorized  the  confiscation  of  adulterated  food  after  it  had 
reached  its  destination  and  was  still  in  the  original  package. 
That  there  was  no  doubt  in  the  mind  of  the  court  as  to  the 
validity  of  the  law  is  evidenced  by  the  language  used  in  uphold- 
ing the  right  of  confiscation  claimed  by  the  government.  The 
court  said:  "In  other  words,  transportation  in  interstate  com- 
merce is  forbidden  to  them  [the  adulterated  products],  and,  in 
a  sense,  they  are  made  culpable  as  well  as  their  shipper.  It  is 
clearly  the  purpose  of  the  statute  that  they  shall  not  be  stealthily 
put  into  interstate  commerce  and  be  stealthily  taken  out  again 
upon  arriving  at  their  destination  and 4 be  given  asylum  in  the 
mass  of  property  of  the  state."  In  the  case  of  McDermott  v. 
Wisconsin*^  the  point  at  issue  was  whether  the  provisions  of  a 
Wisconsin  statute  relative  to  the  labeling  of  food  products  con- 
flicted with  the  federal  law.  While  the  constitutionality  of  the 
Pure  Food  Act  was  not  squarely  attacked,  the  Supreme  Court 
took  occasion  to  express  itself  clearly  upon  that  point.  It  said : 

"That  Congress  has  ample  power  in  this  connection  is  no 
longer  open  to  question.  That  body  has  the  right  not  only  to 
pass  laws  which  shall  regulate  legitimate  commerce  among  the 
states  and  with  foreign  nations,  but  has  full  power  to  keep  the 
channels  of  such  commerce  free  from  the  transportation  of  illicit 
or  harmful  articles,  to  make  such  as  are  injurious  to  the  public 
health  outlaws  of  such  commerce  and  to  bar  them  from  the  facili- 
ties and  privileges  thereof.  .  .  .  The  object  of  the  statute  is  to 
prevent  the  misuse  of  the  facilities  of  interstate  commerce  in 
conveying  to  and  placing  before  the  consumer  misbranded  and 
adulterated  articles  of  medicine  or  food." 

The  Meat  Inspection  Act,  as  its  name  suggests,  provides  an 
elaborate  system  of  government  inspection  of  meat  before  and 
after  slaughter  and  during  the  process  of  packing,  as  well  as  of 
the  premises  on  which  these  processes  are  carried  on,  and  for- 
bids the  shipment  in  interstate  or  foreign  commerce  of  meat  or 
meat  products  not  so  inspected.  While  applicable  to  a  somewhat 
different  set  of  conditions,  it  is  quite  clear  that  this  statute  is 
the  same  in  purpose  and  rests  upon  exactly  the  same  constitu- 
tional principles  as  the  Pure  Food  Act.  The  validity  of  the  act 
has  never  been  questioned  before  the  United  States  Supreme 
Court. 

4<>  (1911)  220  U.  S.  45,  30  S.  C.  R.  364,  55  L.  Ed.  364. 
4i  (1913)  228  U.  S.  115,  33  S.  C.  R.  431,  57  L.  Ed.  754. 


THE  NATIONAL  POLICE  POWER  397 

(b)  Exclusion  to  Prevent  the  Spread  of  Disease,  Infection, 
or  Parasites:  Congress  has  imposed  quarantine  regulations  upon 
foreign  and  interstate  commerce  to  prevent  the  spread  of  human 
disease,  diseases  of  livestock,  and  diseases  and  pests  which  attack 
plant  and  tree  life.  The  more  interesting  and  important  of  these 
acts  may  be  briefly  mentioned. 

It  is  hardly  within  the  scope  of  this  article  to  allude  to  the 
numerous  statutes  whereby  Congress  has  sought  to  prevent,  the 
introduction  of  human  disease  into  this  country  through  the 
channels  of  foreign  commerce.42  During  serious  epidemics  laws 
have  sometimes  been  passed  to  prevent  the  spread  of  disease 
from  state  to  state  by  imposing  restrictions  upon  the  freedom 
of  passage  in  interstate  commerce.  Thus  in  1890  the  President 
was  authorized  by  law  to  take  such  measures  as  might  be  neces- 
sary to  prevent  the  spread  of  cholera,  yellow  fever,  smallpox, 
and  the  plague.43 

Much  more  numerous  have  been  the  statutes  aimed  to  pre- 
vent the  spread  of  animal  diseases  through  the  channels  of 
commerce.  By  the  act  of  1890  the  President  was  given  power 
to  suspend  entirely  for  a  limited  time  the  importation  of  any 
class  of  animals  when  necessary  to  protect  animals  in  this  country 
from  diseases.44  In  1884  the  exportation  or  shipment  in  inter- 
state commerce  of  livestock  having  any  infectious  disease  was 
forbidden  ;45  in  1903  power  was  conferred  upon  the  Secretary  of 
Agriculture  to  establish  such  regulations  to  prevent  the  spread  of 
such  diseases  through  foreign  or  interstate  commerce  as  he 
might  consider  necessary;46  in  1905  the  same  official  was 
specifically  authorized  to  lay  an  absolute  embargo  or  quarantine 
upon  all  shipments  of  cattle  from  one  state  to  another  when 
the  public  necessity  might  demand  it.47  While  the  Supreme 
Court  has  held  unconstitutional  such  federal  quarantine  regu- 
lations of  this  sort  as  have  been  made  applicable  to  intrastate 
shipments  of  livestock,  on  the  ground  that  federal  authority 


42  For  existing  regulations  see  Comp.  Stat.  1918,  Sees.  9150-9182.  See 
article  by  Edwin  Maxey,  Federal  Quarantine  Laws,  (1909)  43  Amer.  Law 
Rev.  382. 

«  Act  of  March  27,  1890,  26  Stat.  at  L.  31. 

44  Act  of  August  30,  1890,  26  Stat.  at  L.  416. 

45  Act  of  May  29,  1884,  23  Stat.  at  L.  31. 

46  Act  of  February  2,  1903,  32  Stat.  at  L.  791. 
*  Act  of  March  3,  1905,  33  Stat.  at  L.  1264. 


398  MINNESOTA  LAW  REVIEW 

extends  only  to  foreign  and  interstate  commerce,48  the  general 
validity  pf  this  type  of  regulation  has  been  tacitly  assumed.49 

A  statute  of  1905  forbade  the  transportation  in  foreign  and 
interstate  commerce  and  the  mails  of  certain  varieties  of  moths, 
plant  lice,  and  other  insect  pests  injurious  to  plant  crops,  trees, 
and  other  vegetation.50  In  1912  a  similar  exclusion  of  diseased 
nursery  stock  was  made  effective,51  while  by  the  same  act,  and 
again  by  an  act  of  1917,52.the  Secretary  of  Agriculture  was 
invested  with  the  same  powers  of  quarantine  on  interstate  com- 
merce for  the  protection  of  plant  life  from  disease  as  those  above 
described  for  the  prevention  of  the  spread  of  animal  disease. 
All  of  this  legislation  has  apparently  gone  unattacked  in  the 
courts,  but  no  doubt  can  possibly  exist  as  to  the  congressional 
authority  to  enact  it. 

3.  Protection  of  the  Public  Against  Fraud.  In  concluding 
the  treatment  of  this  general  type  of  national  police  regu- 
lation under  the  commerce  clause,  some  instances  may  be 
mentioned  in  which  Congress  has  excluded  commodities  from 
commerce  in  order  to  protect  the  public  from  fraud  and  decep- 
tion. These  statutes  are  included  for  the  sake  of  logical 
completeness  rather  than  because  they  contribute  anything  new 
to  the  constitutional  principles  already  discussed. 

There  is  probably  no  question  that  the  act  of  1902  excluding 
from  commerce  food  and  dairy  products  falsely  branded  as  to 
the  state  in  which  they  were  made  or  produced53  was  designed 
to  prevent  frauds  upon  the  consumer  rather  than  to  protect  him 
from  any  menace  to  his  health.  Butter  made  in  Ohio  does  not 
become  unwholesome  because  its  label  falsely  states  that  it  was 
made  in  Illinois ;  but  the  statute  proceeds  on  the  assumption  that 
the  purchaser  has  a  right  to  know  where  it  really  was  made. 

As  has  already  been  suggested,  when  Congress  passed  the 
Pure  Food  Act  of  190654  it  desired  not  only  to  protect  the  public 
health  but  also  to  protect  the  public  from  fraud,  by  making  it 
possible  for  persons  who  receive  food  or  drug  products  through 
foreign  or  interstate,  commerce  to  be  reasonably  sure  of  knowing 

48  111.  Cent.  R.  Co.  v.  McKendree,  (1906)  203  U.  S.  514,  27  S.  C.  R.  153, 
51  L.  Ed.  298. 

™  As  in  Reid  v.  Colorado,  (1902)  187  U.  S.  137.  23  S.  C.  R.  92,  47  L.  Ed. 
108,  where  the  Act  of  May  29,  1884,  supra,  was  construed  and  applied. 

50  Act  of  March  3,  1905,  33  Stat.  at  L.  1269. 

r>1  Act  of  August  20,  1912,  37  Stat.  at  L.  315. 

52  Act  of  March  4,  1917,  39  Stat.  at  L.  1165. 

•"'3  Act  of  July  1.  1902,  32  Stat.  at  L.  632. 

54  Supra,  note  36. 


THE  NATIONAL  POLICE  POWER  399 

what  they  were  getting.  To  this  end  the  statute  was  made  to 
include  detailed  provisions  regarding  the  adequate  and  honest 
labeling  or  branding  of  food  or  drugs,  and  adulterations  and  false 
markings  were  forbidden  even  though  the  products  might  be 
perfectly  harmless  and  healthful.  The  provisions  of  the  act, 
aimed  at  fraudulent  brands  and  labels,  were  further  strength- 
ened by  the  enactment  in  1912  of  an  important  amendment  which 
stipulated  that  drugs  should  be  held  to  be  "misbranded"  if  the 
"package  or  label  shall  bear  or  contain  any  statement,  design,  or 
device  regarding  the  curative  or  therapeutic  effect  of  such 
article  or  any  of  the  ingredients  or  substances  contained  therein, 
which  is  false  and  fraudulent."05  An  effective  blow  was  thus 
struck  at  the  advertising  methods  of  the  purveyors  of  "quack" 
medicines  and  nostrums.  A  still  later  amendment  to  the  same 
act  struck  at  a  different  sort  of  fraud  by  requiring  that  the  net 
weight  of  the  contents  be  marked  on  packages  of  food  or  drugs.50 

Various  other  statutes  have  been  passed  to  deny  the  privi- 
leges of  commerce  to  other  kinds  of  fraudulent  products.  Among 
these  may  be  mentioned  the  act  excluding  from  commerce 
"falsely  or  spuriously  stamped  articles  of  merchandise  made  of 
gold  or  silver,  or  their  alloys,"57  the  act  excluding  adulterated  or 
misbranded  insecticides  and  fungicides,38  and  the  recent  Grain 
Standards  Act59  excluding  all  grain  unless  inspected  and  found 
to  be  of  standard  grade.  None  of  this  legislation  calls  for  ex- 
tended comment. 

When  one  considers  the  wide  scope  of  the  police  power 
which  Congress  has  exercised  by  closing  the  channels  of  com- 
meFce  to  commodities  and  transactions  which  menace  the  public 
morals,  health,  and  welfare,  it  is  quite  natural  to  let  the  highly 
important  and  salutary  purposes  which  Congress  has  furthered 
by  this  legislation  obscure  the  precise — and  quite  limited — 
methods  by  which  Congress  accomplished  these  ends.  From  the 
fact  that  Congress  has  excluded  from  commerce  articles  which 
if  distributed  and  consumed  would  prove  dangerous  to  the  public 
health,  it  has  been  an  easy  step  to  conclude  that  Congress  might 

55  Act  of  August  23,  1912,  37  Stat.  at  L.  416.  This  amendment  was  ren- 
dered necessary  by  the  decision  in  United  States  v.  Johnson,  (1911)  221 
U.  S.  488,  31  S.  C  R.  627,  55  L.  Ed.  823,  which  held  that  the  word  "mis- 
branded"  as  used  in  the  Act  of  1906  did  not  apply  to  false  statements  as  to 
the  curative  properties  of  drugs. 

™  Act  of  March  3,  1913,  37  Stat.  at  L.  732. 

"  Act  of  June  13.  1906.  34  Stat.  at  L.  260. 

58  Act  of  April  26.  1910,  36  Stat.  at  L.  331. 

59  Act  of  August  11,  1916,  39  Stat.  at  L.  482. 


400  MINNESOTA  LAW  REVIEW 

exclude  from  commerce  anything,  regardless  of  its  character  or 
intended  use,  if  by  using  such  exclusion  as  a  club  or  penalty 
there  might  result  a  still  more  adequate  protection  of  the  public 
health.  Whether  or  not  it  is  logically  possible  to  infer  the 
existence  of  this  broader  national  police  power  from  the  cases 
which  have  thus  far  been  discussed — and  this  has  proved  to  be 
a  highly  controversial  question — there  is  small  reason  to  believe 
that  the  courts  by  which  those  cases  were  decided  expected  or 
desired  any  such  inferences  to  be  drawn  from  them.  All  that  it 
is  necessary  to  infer  from  the  statutes  and  decisions  thus  far 
reviewed  is  that  under  its  power  to  regulate  interstate  commerce 
Congress  may  properly  be  charged  with  the  responsibility  of 
seeing  that  the  commerce  so  committed  to  its  care  is  not  used  as 
a  "conduit"  for  the  distribution  of  injurious  products  or  as  a 
facility  for  the  consummation  of  injurious  transactions. 

III.    REGULATIONS  BARRING  THE  USE  OF  INTERSTATE  COMMERCE 

FOR  THE  EVASION  OR  VIOLATION  OF  STATE 

POLICE  REGULATIONS 

It  will  be  noted  that  in  the  statutes  discussed  in  the  above 
section  the  articles  or  transactions  which  were  barred  out  of 
interstate  commerce  were  those  which  Congress  itself  regarded 
as  injurious  to  the  public  welfare.  A  problem  which  has  pre- 
sented far  greater  difficulties  both  for  Congress  and  the  courts 
has  been  the  problem  of  how  to  deal  with  the  interstate  trans- 
portation of  commodities,  such  as  intoxicating  liquors,  which 
Congress,  instead  of  excluding  from  interstate  commerce,  has 
recognized  as  legitimate  articles  of  that  commerce,60  but  which 
have,  at  the  same  time,  been  regarded  by  some  of  the  states  as 
so  harmful  as  to  warrant  the  complete  prohibition  of  their  pro- 
duction, sale,  and  even  possession.  The  problem  has  taken  the 
form  of  a  dilemma.  To  allow  the  individual  states  at  their 
discretion  to  exclude  from  their  borders  legitimate  articles  of 
commerce,  or  to  allow  them  to  decide  for  themselves  what 
articles  of  commerce  are  legitimate  and  to  exclude  the  others, 


}  "By  a  long  line  of  decisions,  beginning  even  prior  to  Leisy  v.  Hardin, 
(1890)  135  U.  S.  100,  it  has  been  indisputably  determined  that  beer  and 
other  intoxicating  liquors  are  a  recognized  and  legitimate  subject  of  inter- 
state commerce,"  Louisville  &  Nashville  R.  Co.  v.  Cook  Brewing  Co..  (1912) 
223  U.  S.  70,  32  S.  C.  R.  189,  56  L.  Ed.  355.  See  the  exhaustive  citation  of 
cases  in  12  Corpus  Juris  20. 


THE  NATIONAL  POLICE  POWER  401 

would  seem  to  be  a  reversion  to  the  non-uniform,  obstructive, 
and  wholly  unsatisfactory  system  of  commercial  regulation  by 
the  states  which  it  was  one  of  the  primary  purposes  of  the 
framers  of  the  federal  constitution  to  abolish  forever.  On  the 
other  hand,  to  pour  intoxicating  liquor  through  the  channels  of 
interstate  commerce  into  a  state  which  is  struggling  with  the 
already  difficult  problem  of  making  its  prohibition  laws  effective 
seems  to  be  very  bad  policy  if  not  also  bad  law.  It  has  taxed 
to  the  utmost  the  ingenuity  of  Congress  and,  it  may  be  said,  of 
the  courts  as  well,  to  steer  a  middle  course  between  the  horns 
of  this  dilemma;  to  avoid  forcing  liquor  down  the  throats  of 
states  which  do  not  want  it,  without  sacrificing  the  vital  principle 
of  uniformity  in  the  regulation  of  interstate  transportation  of 
commodities.  The  steps  in  the  development  of  this  problem  and 
the  various  efforts  which  Congress  has  made  to  solve  it  may 
properly  claim  some  attention,  inasmuch  as  these  efforts  may  be 
regarded  as  exercises  of  a  national  police  power  under  the  com- 
merce clause. 

1.  The  Original  Package  Doctrine?*  That  goods  imported 
from  foreign  countries  do  not  become  subject  to  the  jurisdiction 
of  the  individual  states  so  long  as  they  remain  in  the  original 
packages  in  which  they  were  shipped  and  have  hot  been  merged 
in  the  general  mass  of  the  property  of  the  state  was  settled  in 
1827.62  But  when  twenty  years  later  the  question  was  presented 
to  the  Supreme  Court  in  the  License  Cases63  whether  a  state 
could  prohibit  or  restrain  by  the  requirement  of  a  license  the  sale 
in  the  original  packages  of  liquor  brought  in  from  other  states 
or  from  abroad  the  court  answered  that  it  could.  There  was  no 
act  of  Congress  with  which  the  state  statutes  in  question  could 
be  said  to  conflict,  and  such  regulation  of  interstate  shipments 
of  liquor  could  be  held  invalid  only  on  the  theory  that  the 
grant  of  power  to  Congress  to  regulate  interstate  commerce  was 
exclusive  and  precluded  any  state  regulation  on  the  same  subject 
even  though  Congress  had  not  yet  exercised  its  power  over  it. 
The  leading  opinion,  which  was  written  by  Chief  Justice  Taney, 
definitely  rejected  this  theory. 


61  This  problem  is  treated  in  detail  in  the  first  of  a  valuable  series  of 
articles  by  Lindsay  Rogers  on  Interstate  Commerce  in  Intoxicating  Liquors 
Before  the  Webb-Kenyon  Act,  (1916)  4  Va.  Law  Rev.  174. 

62  Brown  v.  Maryland,  (1827)  12  Wheat.  (U.  S.)  419,  6  L.  Ed.  678. 

63  (1847)  5  How.  (U.  S.)  504,  12  L.  Ed.  256. 


402  MINNESOTA  LAW  REVIEW 

"The  mere  grant  of  power  to  the  general  government  [declared 
the  chief  justice]  cannot,  upon  any  just  principles  of  construc- 
tion, be  construed  to  be  an  absolute  prohibition  to  the  exercise 
of  any  power  over  the  same  subject  by  the  states.  The  con- 
trolling and  supreme  power  over  commerce  with  foreign  nations 
and  the  several  states  is  undoubtedly  conferred  upon  Congress. 
Yet,  in  my  judgment,  the  state  may,  nevertheless,  for  the  safety 
or§  convenience  of  trade,  or  for  the  protection  of  the  health  of 
its  citizens,  make  regulations  of  commerce  for  its  own  ports  and 
harbours,  and  for  its  own  territory;  and  such  regulations  are 
valid  unless  they  come  in  conflict  with  a  law  of  Congress." 

The  decision  in  the  License  Cases  reflects  not  only  the  "state's 
rights"  constitutional  principles  of  the  Supreme  Court  as  then 
constituted  but  the  very  obvious  concern  of  the  court  at  the  pros- 
pect that  the  prohibition  laws  which  a  number  of  states  were 
beginning  to  enact  should  be  rendered  ineffective  by  a  use  of 
interstate  commerce  which  those  states  were  powerless  to 
prevent.84 

With  the  abatement  of  temperance  zeal  which  followed  the 
Civil  War,  it  was  more  than  twenty  years  before  another  grist 
of  state  laws  purporting  to  restrain  or  prohibit  the  bringing  of 
liquor  into  the  state  through  the  channels  of  interstate  commerce 
claimed  the  attention  of  the  Supreme  Court.  In  1888,  however, 
the  court  threw  consternation  into  the  ranks  of  the  prohibitionists 
by  invalidating  an  Iowa  statute  which  punished  any  railroad 
company  for  knowingly  bringing  into  the  state  for  any  other 
person  any  intoxicating  liquors  without  a  certificate  that  the 
consignee  was  authorized  to  sell  them.  This  was  the  case  of 
Bowman  v.  Chicago  and  Northwestern  Ry.  Co.63  It  held  that 
the  statute  was  an  attempt  to  exercise  "jurisdiction  over  persons 
and  property  within  the  limits  of  other  states"  and,  furthermore, 
"If  not  in  contravention  of  any  positive  legislation  by  Congress, 
it  is  nevertheless  a  breach  and  interruption  of  that  liberty  of 
trade  which  Congress  ordains  as  the  national  policy,  by  willing 
that  it  shall  be  free  from  restrictive  regulations."  The  court  did 
not  cross  any  unnecessary  bridges  in  the  Bozvman  case,  but 
merely  held  that  even  in  the  absense  of  conflicting  federal  legis- 
lation a  state  could  not  make  it  a  crime  to  import  an  article  of 
commerce  within  its  borders. 

64  An  account  of  this  ante-bellum  prohibition  movement  is  given  in  the 
Encyclopedia  Britannica  under  Liquor  Laws,  Vol.  XVI,  p.  767.  See  also 
A  A.  Bruce,  The  Wilson  Act  and  the  Constitution,  (1909)  21  Green  Bag 

«  (1888)  125  U.  S.  465,  8  S.  C.  R.  689,  1062,  31  L.  Ed.  700. 


THE  NATIONAL  POLICE  POWER  403 

While  the  friends  of  prohibition  in  Congress  were  still 
endeavoring-  to  enact  some  sort  of  statute  which  would  patch  up 
the  havoc  wrought  by  the  Bowman  case,60  a  still  greater  calamity 
befell  them  in  the  decision  of  the  Supreme  Court  early  in  1890 
in  the  case  of  Leisy  v.  Harding  This  case,  popularly  known  as 
the  Original  Package  Case,  overruled  the  decision  in  the  License 
Cases*8  and  held  in  substance  that,  even  in  the  absence  of  con- 
gressional regulation  6f  the  subject,  the  police  power  of  the  state 
could  not  be  exercised  to  prohibit  the  bringing  of  articles  of  com- 
merce into  the  state  and  the  selling  of  those  articles  in  the 
original  packages.  An  article  of  interstate  commerce  does  not 
cease  to  be  such  until  it  has  either  been  taken  out  of  the  original 
package  or  sold  in  that  package ;  and  until  it  ceases  to  be  an 
article  of  interstate  commerce  it  is  beyond  the  reach  of  the  state 
police  power. 

"Whatever  our  individual  views  may  be  as  to  the  deleterious 
or  dangerous  qualities  of  particular  articles  [said  the  court]  we 
cannot  hold  that  any  articles  which  Congress  recognizes  as  sub- 
jects of  interstate  commerce  are  not  such,  or  that  whatever  are 
thus  recognized  can  be  controlled  by  state  laws  amounting  to 
regulations,  while  they  retain  that  character.  .  .  .  To  con- 
cede to  a  state  the  power  to  exclude,  directly  or  indirectly, 
articles  so  situated,  without  congressional  permission,  is  to  con- 
cede to  a  majority  of  the  people  of  a  state,  represented  in  the 
state  legislature,  the  power  to  regulate  commercial  intercourse 
between  the  states,  by  determining  what  shall  be  its  subjects, 
when  that  power  was  distinctly  granted  to  be  exercised  by  the 
people  of  the  United  States,  represented  in  Congress,  and  its 
possession  by  the  latter  was  considered  essential  to  that  more 
perfect  Union  which  the  Constitution  was  adopted  to  create." 

Now  it  is  perfectly  clear  that  if  a  state  cannot  forbid  the 
shipping  in  of  intoxicating  liquors  from  other  states  and  cannot 
forbid  the  sale  of  those  liquors  in  their  original  packages  after 
they  have  been  shipped  in,  then  state  prohibition  becomes  more 
or  less  of  a  farce.  But  close  scrutiny  of  the  opinion  of  Chief 
Justice  Fuller  in  Leisy  v.  Hardin  indicated  to  the  friends  of  pro- 
hibition that  there  might  still  be  a  method  of  bettering  this  unfor- 
tunate plight  of  the  prohibition  states.  Although  it  was  unneces- 
sary to  the  decision  of  the  case,  the  Chief  Justice  had  definitely 

fie  These  efforts  are  described  by  Lindsay  Rogers,  op.  cit,  second  article, 
4  Va.  Law  Rev.  294. 

67  (1890)  135  U.  S.  100, 10  S.  C.  R.  681,  34  L.  Ed.  128. 

68  Supra,  note  63. 


404  MINNESOTA  LAW  REVIEW 

suggested  at  several  points  in  his  opinion  that  this  incapacity  of 
the  states  to  protect  themselves  against  interstate  shipments  of 
liquor  was  due  to  the  fact  that  Congress  had  not  given  the  states 
permission  to  exert  any  authority  over  such  shipments.69  The 
inference  from  these  dicta  was  perfectly  plain:  i.  e.,  Congress 
might  pass  an  act  bestowing  upon  the  atates  the  power  to  pass 
the  police  regulations  applicable  to  interstate  consignments  of 
liquor,  which,  in  the  absence  of  such  permission,  the  court  had 
held  them  powerless  to  enact.  Congress,  under  pressure  from 
the  temperance  forces,  proceeded  to  give  the  states  the  desired 
permission,  and  the  Wilson  Act70  became  law  within  a  year  after 
the  decision  in  Leisy  v.  Hardin. 

2.  Congressional  Permission  to  States  to  Protect  Themselves 
from  Certain  Types  of  Interstate  Commerce.  The  Wilson  Act 
provided  that  "intoxicating  liquors  ....  transported  into 
any  State  or  Territory  or  remaining  therein  ....  shall 
upon  arrival  ....  be  subject  to  the  operation  .... 
of  the  laws  of  such  State  or  Territory  enacted  in  the  exercise  of 
its  police  power  ....  in  the  same  manner  as  though  .  . 
.  .  produced  in  such  State  or  Territory,  and  shall  not  be  exempt 
therefrom  by  reason  of  being  introduced  therein  in  original  pack- 
ages or  otherwise."  The  Supreme  Court  promptly  sustained  the 
constitutionality  of  the  act  in  the  case  of  In  re  Rahrer.7i  It  is 
impossible  to  enter  upon  an  extended  discussion  of  the  highly 


69  135  U.  S.  at  page  109 :  "Hence,  inasmuch  as  interstate  commerce,  con- 
sisting in  the  transportation,  purchase,  sale  and  exchange  of  commodities,  is 
national  in  its  character,  and  must  be  governed  by  a  uniform  system,  so  long 
as  Congress  does  not  pass  any  law  to  regulate  it,  or  allowing  the  states  so  to 
do,  it  thereby  indicates  its  will  that  such  commerce  shall  be  free  and  un- 
trammelled." 

At  page  110:  "If  the  importation  cannot  be  prohibited  without  the  con- 
sent of  Congress,  when  does  property  imported  from  abroad,  or  from  a 
sister  state,  so  become  part  of  the  common  mass  of  property  within  a  state 
as  to  be  subject  to  its  unimpeded  control?" 

At  page  114:  "It  cannot,  without  the  consent  of  Congress,  express  or 
implied,  regulate  commerce  between  its  people  and  those  of  the  other  States 
of  the  Union  in  order  to  effect  its  end,  however  desirable  such  a  regulation 
might  be." 

At  page  119:  ".  .  .  .  the  states  cannot  exercise  that  power  [to  regulate 
commerce  among  the  states]  without  the  assent  of  Congress " 

At  page  123  :  .  .  .  .  the  responsibility  is  upon  Congress,  so  far  as  the 
regulation  of  interstate  commerce  is  concerned,  to  remove  the  restriction 
upon  the  State  in  dealing  with  imported  articles  of  trade  within  its  limits, 
which  have  not  been  mingled  with  the  common  mass  of  property  therein,  if 
in  its  judgment  the  end  to  be  secured  justifies  and  requires  such  action." 

The  italics  are  the  author's. 

TO  Act  of  August  8,  1890,  26  Stat.  at  L.  313. 

71  (1891)  140  U.  S.  545,  11  S.  C.  R.  865.  35  L.  Ed.  572. 


THE  NATIONAL  POLICE  POWER  405 

controversial  questions  which  came  up  in  this  case.72  The  statute 
was  attacked  primarily  on  the  grounds,  first,  that  in  passing  it 
Congress  had  delegated  to  the  states  a  portion  of  its  authority 
over  interstate  commerce ;  and  second,  that  it  established  a  regu- 
lation of  that  commerce  which  was  non-uniform  in  character. 
The  court  denied  that  the  states  had  been  given  by  the  act  any 
power  to  regulate  interstate  commerce.  "Congress  did  not  use 
terms  of  permission  to  the  state  to  act,  but  simply  removed  an 
impediment  to  the  enforcement  of  the  state  laws  in  respect  to 
imported  packages  in  their  original  condition,  created  by  the 
absence  of  a  specific  utterance  on  its  part,"  and  it  is  entirely, 
proper  for  Congress  to  "provide  that  certain  designated  subjects 
of  interstate  commerce  shall  be  governed  by  a  rule  which  divests 
them  of  that  character  at  an  earlier  period  of  time  than  would 
otherwise  be  the  case."  The  court  also  denied  that  the  act  estab- 
lished a  non-uniform  regulation  of  commerce.  Congress  has 
"taken  its  own  course  and  made  its  own  regulation,  applying  to 
these  subjects  of  interstate  commerce  one  common  rule,  whose 
uniformity  is  not  affected  by  variations  in  state  laws  in  dealing 
with  such  property." 

There  is  every  reason  to  suppose  that  Congress  in  passing 
the  Wilson  Act  believed  that  it  was  giving  the  states  adequate 
authority  to  protect  themselves  from  interstate  shipments  of 
liquor.  It  was  not  until  the  case  of  Rhodes  v.  Iowa's  was  decided 
in  1898  that  it  became  clear  that  the  enactment  of  that  statute 
and  the  decision  of  the  Supreme  Court  sustaining  its  validity 
were  but  empty  victories  for  the  prohibition  cause.  In  that  case 
the  Supreme  Court  decided  that  when  the  Wilson  Act  provides 
that  intoxicating  liquors  brought  into  a  state  shall  be  subject 
to  the  state  police  power  "upon  arrival,"  the  word  "arrival" 
means,  not  arrival  at  the  state  line,  but  arrival  in  the  hands  of 
the  one  to  whom  they  were  consigned ;  and  until  such  arrival 
they  are  exempt  from  state  control  or  interference.74  Under  this 

72  See  the  second  article  by  Lindsay  Rogers,  op.  cit.,  4  Va.  Law  Rev.  288 ; 
also  A.  A.  Bruce,  op.  cit.,  note  64.     The  article  by  Judge  Bruce  is  a  vigorous 
criticism  of  the  Rahrer  case. 

73  (1898)  170  U.  S.  412,  18  S.  C.  R.  664,  42  L.  Ed.  1088.    This  case  re- 
versed the  decision  of  the  Iowa  supreme  court  in  State  v.  Rhodes,  (1894) 
90  Iowa  4%,  58  N.  W.  887,  24  L.  R.  A.  245,  which  held  that  under  the  Wilson 
Act  shipments  of  liquor  from  other  states  became  subject  to  the  police 
power  of  the  state  as  soon  as  they  crossed  the  boundary  line  of  the  state. 

74  The  decision  in  Rhodes  v.  Iowa  had  been  foreshadowed  by  the  case 
of  Scott  v.  Donald  (1897)  165  U.  S.  58.  17  S.  C.  R.  265,  41  L.  Ed.  632— see 
also  Vance  v.  Vandercook  Co..  (1898)  170  U.  S.  438.  18  S.  C.  R.  674,  42  L.  Ed. 
1100, — which  held  that  the  South  Carolina  dispensary  system  could  not  ex- 


406  MINNESOTA  LAW  REVIEW 

construction  it  is  apparent  that  the  Wilson  Act.  instead  of  giving 
the  states  the  virtual  right  to  prohibit  the  importation  of  liquor 
by  allowing  them  to  confiscate  it  as  soon  as  it  reached  the  state 
line,  merely  gave  them  the  right  to  forbid  the  disposition  or  sale 
of  the  liquor  after  the  interstate  carrier  had  actually  delivered 
it  to  the  consignee.  By  such  a  limitation  on  the  scope  of  the 
prohibitive  laws  of  the  state  so  many  opportunities  for  the  evasion 
of  those  laws  were  opened  up  as  to  render  the  Wilson  Act  a  very 
inconsequential  gain  to  the  temperance  cause. 

It  may  be  noted  in  passing  that  in  1902  a  statute  practically 
identical  in  its  terms  \vith  the  Wilson  Act  was  passed  subjecting 
to  the  police  legislation  of  the  states,  upon  their  arrival  therein, 
interstate  shipments  of  oleomargarine  and  other  imitations  of 
butter.75  This  statute  has  never  attracted  much  attention  and  it 
presents  no  new  constitutional  problem. 

3.  Making  Articles  Shipped  in  Interstate  Commerce  with 
Intention  to  Violate  State  Lazvs  Outlaws  of  That  Commerce. 
(a)  The  Webb-Kenyon  Act:  No  sooner  had  the  Wilson  Act 
been  emasculated  by  the  decision  in  Rhodes  v.  Iowa  than  agita- 
tion was  begun  in  Congress  for  legislation  which  would  actually 
give  the  prohibition  states  the  protection  against  interstate  ship- 
ments of  liquor  which  that  measure  had  been  vainly  supposed  to 
provide.  The  problem,  however,  was  growing  increasingly  diffi- 
cult. Grave  doubts  were  raised  regarding  the  constitutionality 
of  the  various  proposals  for  such  legislation,  but  after  consider- 
able use  of  the  trial  and  error  method  the  Webb-Kenyon  Bill  was 
passed  by  Congress  in  1913. T6  It  was  vetoed  by  President  Taft 
on  the  advice  of  Attorney-General  Wickersham,  on  the  ground 
that  it  was  unconstitutional;77  but  it  was  promptly  passed  over 
his  veto.  The  title  of  the  statute  described  it  as  "An  Act  Divest- 
ing Intoxicating  Liquors  of  Their  Interstate  Character  in  Certain 
Cases,"  and  it  proceeded  to  do  this  by  prohibiting  (without  attach- 
ing any  penalty)  the  shipment  in  interstate  commerce  of  intoxi- 
cating liquors  "intended,  by  any  persons  interested  therein,  to  be 
received,  possessed,  sold,  or  in  any  manner  used"  in  violation  of 

tend  its  monopolistic  control  of  the  liquor  traffic  in  that  state  to  the  total  ex- 
clusion of  liquor  from  other  states.  See  the  third  article  by  Lindsay  Rogers, 
op.  cit,  4  Va.  Law  Rev.  355,  dealing  with  The  Narrowing  of  the  Wilson  Act. 

75  Act  of  May  9,  1902,  32  Stat.  at  L.  193.  The  steps  leading  up  to  the 
passage  of  this  act  are  set  forth  in  the  second  article  by  Lindsay  Rogers, 
op.  cit.,  4  Va.  Law  Rev.  288. 

™  Act  of  March  1,  1913,  37  Stat.  at  L.  699. 

77  The  veto  message  and  the  opinion  of  the  attorney-general  are  found 
in  Sen.  Doc.  103,  63rd  Congress,  1st  Session.  ^ 


THE  NATIONAL  POLICE  POWER  407 

the  law  of  the  state  of  their  destination.  Hitherto  the  states 
had  been  unable  to  exclude  shipments  of  liquor  from  other  states 
because  such  action  amounted  to  an  unconstitutional  prohibition 
of  interstate  commerce;  under  the  Webb-Kenyon  Act  the  exclu- 
sion of  such  liquors  was  made  lawful  by  outlawing  those  ship- 
ments from  interstate  commerce  and  thereby  depriving  them  of 
that  federal  protection  from  state  regulation  which  articles  of 
interstate  commerce  enjoy. 

The  Webb-Kenyon  Act  was  held  constitutional  by  the 
Supreme  Court  in  1917  in  the  case  of  Clark  Distilling  Co.  v. 
Western  Maryland  Ry.  Co.~s  The  court  pointed  out  that  under 
the  doctrine  of  the  Lottery  Case  70  and  Hoke  v.  United  States90 
no  doubt  remained  as  to  the  power  of  Congress  to  exclude  intoxi- 
cating, liquor  from  interstate  commerce  altogether.  The  objection 
raised  to  the  act  was  not,  therefore,  "an  absence  of  authority 
to  accomplish  in  substance  a  more  extended  result  than  that 
brought  about  by  the  Webb-Kenyon  Law,  but  ....  a  want 
of  power  to  reach  the  result  accomplished  because  of  the  method 
resorted  to."  This  method  was  not  unconstitutional  on  the 
ground  that  it  delegated  power  to  the  state  to  prohibit  interstate 
commerce  in  intoxicating  liquors  (the  argument  on  which  Presi- 
dent Taft's  veto  was  based)  and  thereby  permitted  the  non- 
uniform  regulation  of  such  commerce ;  the  court  declared  that  the 
argument  as  to  the  delegation  of  power  to  the  states  rested  upon 
a  misconception :  ".  .  .  the  will  which  causes'  the  pro- 
hibitions to  be  applicable  is  that  of  Congress,  since  the  application 
of  state  prohibitions  would  cease  the  instant  the  act  of  Congress 
ceased  to  apply."  In  regard  to  the  alleged  non-uniformity  of 
commercial  regulation  the  court  declared:  "  .  .  .  .  there 
is  no  question  that  the  act  uniformly  applies  to  the  conditions 
which  call  its  provisions  into  play — that  its  provisions  apply  to 
all  the  states — so  that  the  question  really  is  a  complaint  as  to 
the  want  of  uniform  existence  of  things  to  which  the  act  applies, 
and  not  to  an  absence  of  uniformity  in  the  act  itself."  Having 
disposed  of  these  objections  the  court  could  "see  no  reason  for 
saying  that  although  Congress,  in  view  of  the  nature  and  char- 
acter of  intoxicants  had  power  to  forbid  their  movement  in  inter- 
state commerce,  it  had  not  the  authority  so  to  deal  with  the 
subject  as  to  establish  a  regulation  (which  is  what  was  done  by 

•8  (1917)  242  U.  S.  311,  37  S.  C.  R.  180,  61  L.  Ed.  326. . 
79  Supra,  p.  386. 
8°  Supra,  p.  390. 


408  MINNESOTA  LAW  REVIEW 

the  Webb-Kenyon  Law)  making-  it  impossible  for  one  state  to 
violate  the  prohibitions  of  the  laws  of  another  through  the  chan- 
nels of  interstate  commerce."81 

(b)  The  Lacey  Act:  In  1900  Congress  passed  a  statute  mak- 
ing it  unlawful  to  ship  from  one  state  or  territory  to  another  state 
or  territory  any  animals  or  birds  killed  in  violation  of  the  laws 
of  the  state.82  It  is  quite  clear  that  Congress  was  here  using  its 
power  over  interstate  commerce  for  the  purpose  of  co-operating 
with  the  states  in  the  protection  of  wild  game  and  birds.  In  fact, 
the  first  section  of  the  statute  declared  frankly  that  its  purpose 
was  to  "aid  in  the  restoration  of  such  birds  in  those  parts  of 
the  United  States  adapted  thereto  where  the  same  have  become 
scarce  or  extinct."  It  should  be  noticed  that  this  act  differs  in 
theorv  from  the  Webb-Kenyon  Act,  because  the  articles'  which 
are  here  outlawed  from  interstate  commerce  are  not  articles 
which  when  distributed  through  that  commerce  will  menace  the 
public  welfare.  They  are  outlawed  because  of  their  illegal  origin 
and  possession  and  because  Congress  desires  to  prevent  inter- 
state commerce  from  being  used  as  an  outlet  or  place  of  refuge 
for  such  illegal  commodities.  By  passing  the  Webb-Kenyon  Act 
Congress  refused  to  allow  itself  to  become  an  accessory  before  the 
fact,  by  declining-  to  place  the  facilities  of  interstate  commerce 
at  the  disposal  of  those  who  are  about  to  violate  the  prohibition 
laws  of  tl]e  states;  by  passing  the  Lacey  Act  Congress  refused 
to  become  an  accessory  after  the  fact,  by  declining  to  place  those 
facilities  at  the  disposal  of  those  who  have  just  violated  the  state 
law  by  affording  them  a  means  of  disposing  of  their  unlawful 
possessions.  This  difference,  however,  should  have  no  bearing 
upon  the  question  of  congressional  power  to  pass  the  Lacey  Act, 
and  the  only  court  which  has  passed  upon  its  validity  has  held  it 
constitutional  on  the  authority  of  the  Rahrer  case  upholding  the 
Wilson  Act.83 


81  The  Webb-Kenyon  Act  and  the  Clark  Distilling  Co.  case  have  been 
widely  discussed  in  the  legal  periodical  literature.     The  fallowing  articles 
may  be  mentioned  here:     D.  O.  McGovney,  The  Webb-Kenyon  Law  and 
Beyond,  3  Iowa  Law  Bui.  145 :  S.  P.  Orth,  The  Webb-Kenyon  Law  Deci- 
sion, 2  Corn.  Law  Quar.  283 ;  T.  R.  Powell,  The  Validity  of  State  Legisla- 
tion Under  the  Webb-Kenyon  Law,  2  So.  Law  Quar.  112;  Lindsay  Rogers, 
The  Webb-Kenyon  Decision,  4  Va.  Law  Rev.  558.     Other  articles  are  cited 
in  the  notes  to  Decisions  of  the  Supreme  Court  of  the  United  States  on 
Constitutional  Questions,  T.  R.  Powell,  12  Amer.  Polit.  Science  Rev.  19 
et  seq. 

82  Act  of  May  25,  1900,  31  Stat.  at  L.  188. 

83  Rupert  v.  United  States,  (1910)  181  Fed.  87. 


THE  NATIONAL  POLICE  POWER  409 

4.  The  Reed  "Bone-Dry"  Amendment.  The  introduction  for 
discussion  at  this  point  of  the  Reed  Amendment  by  its  popular 
title  rather  than  by  a  caption  indicating  the  principle  on  which 
it  is  based  is  a  confession  by  the  author  of  his  inability  to  discover 
what  that  principle  is,  if  there  be  any.  This  act  was  passed  as 
an  amendment  to  the  Postoffice  Appropriation  Act  of  1917. 8* 
The  pertinent  provision  reads  as  follows :  "Whoever  shall  order, 
purchase,  or  cause  intoxicating  liquors  to  be  transported  in  inter- 
state commerce,  except  for  scientific,  sacramental,  medicinal,  and 
mechanical  purposes,  into  any  state  or  territory  the  laws  of  which 
state  or  territory  prohibit  the  manufacture  or  sale  therein  of 
intoxicating  liquors  for  beverage  purposes  shall  be  punished  as 
aforesaid."85 

A  casual  reading  of  this  statute  might  lead  one  to  assume 
that  Congress  had  merely  supplemented  the  Webb-Kenyon  Act 
by  punishing  those  \vho  make  interstate  shipments  of  liquor 
which,  in  order  to  divest  them  of  their  interstate  character,  that 
act  had  prohibited  without  attaching  a  penalty.  What  the  Reed 
Amendment  really  does  is  to  impose,  under  penalty  of  the  federal 
law,  a  "bone-dry"  policy  in  the  matter  of  shipments  of  liquor 
from  other  states  upon  any  state  which  prohibits  merely  the 
manufacture  and  sale  of  intoxicants  for  beverage  purposes.  In 
other  words,  the  amendment  forbids  the  shipment  of  liquor  even 
for  personal  use  into  a  state  which  may  permit  the  personal  use 
of  liquor  but  forbids  its  manufacture  and  sale. 

The  Supreme  Court  recently  upheld  the  validity  of  the  Reed 
Amendment  in  the  case  of  United  States  v.  Hill.86  It  was  urged 


84  Act  of  March  3,  1917,  39  Stat.  at  L.  1069.    The  same  act  also  pro- 
hibited sending  liquor  advertisements  through  the  mails  into  states  which 
forbade  such  advertising.     See  J.  K.  Graves,  The  Reed  "Bone  Dry"  Amend- 
ment, 4  Va.  Law  Rev.  634. 

85  Italics  are  the  author's. 

se  (1919)  248  U.  S.  420,  39  S.  C.  R.  143.  In  McAdams  v.  Wells  Fargo  & 
Co.  Express,  (1918)  249  Fed.  175,  the  law  was  enforced  against  the  carrier 
and  the  court  said :  "It  is  quite  evident  that  Congress,  in  adopting  said  act, 

intended  to  aid  the  states  in  the  enforcement  of  their  prohibition  laws 

It  may  be  that  Congress  builded  better  than  it  knew  in  passing  the  Act  of 
March  3,  1917 ;  but  there  is  no  doubt  that  it  prohibits  the  shipment  of  liquor 
in  interstate  commerce  for  beverage  purposes  into  the  dry  parts  of  the  state 
of  Texas  wherein  the  sale  of  liquor  is  prohibited  by  the  state  law.  though 
intended  only  for  personal  use."  In  United  States  v.  Mitchell,  (1917)  245 
Fed.  601,  the  court,  while  not  declaring  the  Reed  Amendment  unconstitu- 
tional, held  that  the  transportation  of  liquor  for  personal  use  in  one's  own 
baggage  is  not  "commerce"  and  does  not  therefore  fall  within  the  prohibi- 
tions of  the  act.  The  view  is,  of  course,  in  conflict  with  the  decision  of  the 
Supreme  Court  in  the  Hill  case. 


410  MINNESOTA  LAW  REVIEW 

upon  the  court,' and  the  lower  court  so  held,  that  the  prohibition 
of  the  act  should  be  construed  to  apply  only  to  such  shipments  of 
liquor  as  were  in  violation  of  the  law  of  the  state  into  which  they 
went.  But  the  Supreme  Court  refused  to  narrow  the  meaning  of 
the  act  in  this  way.  The  illegality  of  the  forbidden  shipments 
of  liquor  does  not  depend  upon  the  law  of  the  state,  as  it  does 
in  the  case  of  the  Webb-Kenyon  Act,  but  upon  the  law  of  Con- 
gress. While  Congress  may  exercise  its  authority  over  interstate 
commerce  "in  aid  of  the  policy  of  the  state,  if  it  wishes  to  do  so, 
it  is  equally  clear  that  the  policy  of  Congress  acting  independently 
of  the  states  may  induce  legislation  without  reference  to  the 
particular  policy  or  law  of  any  given  state."  It  is  well  estab- 
lished that  in  certain  cases  congressional  regulation  of  commerce 
may  take  the  form  of  prohibition,  and  this  is  an  appropriate  case 
for  the  exercise  of  that  power.  "That  the  state  saw  fit  to  permit 
the  introduction  of  liquor  for  personal  use  in  limited  quantity  in 
no  wise  interferes  with  the  authority  of  Congress,  acting  under 
its  plenary  power  over  interstate  commerce,  to  make  the  prohibi- 
tion against  interstate  shipment  contained  in  this  act.  It  may 
exert  its  authority,  as  in  the  Wilson  and  WTebb-Kenyon  Acts, 
having  in  view  the  laws  of  the  state,  but  it  has  a  power  of  its 
own,  which  in  this  instance  it  has  exerted  in  accordance  with  its 
view  of  public  policy." 

A  brief  but  vigorous  dissenting  opinion  was  written  by  Mr. 
Justice  McReynolds.  He  expressed  his  conviction  that  the  Reed 
Amendment  "in  no  proper  sense  regulates  interstate  commerce, 
but  it  is  direct  intermeddling  with  the  states'  internal  affairs. 
.  .  .  .  to  hold  otherwise  opens  possibilities  for  partial  and 
sectional  legislation  which  may  destroy  proper  control  of  their 
own  affairs  by  the  separate  states  ....  If  Congress  may 
deny  liquor  to  those  who  live  in  a  state  simply  because  its  manu- 
facture is  not  permitted  there,  why  may  not  this  be  done  for  any 
suggested  reason — e.  g.,  because  the  roads  are  bad  or  men  are 
hanged  for  murder  or  coals  are  dug?  Where  is  the  limit?  .  . 
.  .  The  Reed  Amendment  as  now  construed  is  a  congressional 
fiat  imposing  more  complete  prohibition  wherever  the  state  has 
assumed  to  prevent  manufacture  and  sale  of  intoxicants." 

There  is  nothing  in  the  majority  opinion  in  the  Hill  case  to 
throw  any  light  upon  Mr.  Justice  McReynolds'  question,  "Where 
is  the  limit  ?"  The  law  classifies  the  states  and  prohibits  the  ship- 
ment of  liquor  for  beverage  purposes  into  the  states  comprising 


THE  NATIONAL  POLICE  POWER  411 

one  of  the  classes.  But  there  is  nothing  to  indicate  that  the  court 
regarded  the  constitutionality  of  the  law  as  in  any  way  contingent 
upon  the  intrinsic  reasonableness  of  that  classification.  Emphasis 
is  laid  upon  the  fact  that  Congress  could  exclude  all  liquor  from 
interstate  commerce,  and  the  suggestion  that  the  Reed  Amend- 
ment depends  for  its  prohibitive  force  upon  the  existence  of  any 
particular  type  of  state  law  relating  to  liquor  is  repudiated.  The 
court  does  suggest  that  Congress  apparently  thought  it  would 
be  a  good  thing  to  impose  the  "bone-dry'5  rule  upon  all  states 
having  more  moderate  prohibition  laws,  but  this  is  far  from 
saying  that  the  statute  would  not  have  been  an  equally  legitimate 
exercise  of  the  commerce  power  if  the  purpose  of  Congress  had 
been  something  quite  remote  from  the  suppression  of  the  liquor 
traffic.  If  Congress  has  full  power  to  stop  all  interstate  traffic 
in  liquor,  but  is  under  no  constitutional  obligation  to  prohibit 
the  shipment  of  liquor  into  all  states  merely  because  it  prohibits 
such  shipments  into  some,  being  free  to  make  the  application  of 
that  prohibition  depend  upon  the  existence  or  non-existence  of 
certain  conditions  in  the  states,  then  may  not  Congress  by  turn- 
ing the  interstate  spigot  on  or  off,  as  the  needs  of  the  case  may 
demand,  exert  a  pressure  on  the  states  which  will  lead  them  to 
comply  with  the  congressional  wishes  in  matters  over  which 
Congress  has  no  direct  authority?  It  is  not  impossible  that  Con- 
gress has  stumbled  inadvertently  into  an  unexplored  field  of 
police  regulation,  although  there  is  small  probability  that  such  an 
indirect  method  of  exerting  police  power  would  ever  prove  par- 
ticularly alluring. 

Whatever  may  be  the  constitutional  implications  of  the  Reed 
Amendment  and  the  case  upholding  it,  it  is  impossible  to  classify 
it  with  any  of  the  types  of  national  police  regulation  which  have 
been  thus  far  discussed.  It  is  not  an  exclusion  from  interstate 
commerce  of  a  commodity  which  Congress  regards  as  injurious 
to  the  national  health  or  morals,  because  Congress  does  not 
exclude  all  liquor  from  such  commerce,  but  only  that  destined  for 
certain  states.  Nor  is  it  an  act  designed  to  co-operate  with  the 
states  .in  the  adequate  enforcement  of  their  police  regulations 
relating  to  the  liquor  traffic,  because  it  overrides  the  wishes  of 
many  of  those  states  and  imposes  on  them  a  more  rigorous  prohi- 
bition than  they  desire.  It  embodies  neither  the  principle  of 
positive  national  control  over  the  interstate  shipments  of  liquor 
nor  the  principle  of  local  option  or  state  home  rule  embodied 


412  MINNESOTA  LAW  REVIEW 

in  the  Wilson  and  Webb-Kenyon  Acts.  It  proceeds  upon  the 
somewhat  curious  theory  that  Congress  ought  to  impose  its  own 
brand  of  prohibition  not  upon  all  the  states  but  only  upon  those 
states  which  have  seen  fit  to  adopt  another  sort  of  prohibition. 

From  the  ground  thus  far  covered  it  is  apparent  that  the 
police  power  which  Congress  may  exercise  in  protecting  and 
promoting  interstate  commerce,  substantial  as  that  power  has 
been  shown  to  be,  has  been  overshadowed  by  the  police  power 
resulting  from  the  efforts  of  Congress  to  keep  that  commerce 
from  being  used  to  distribute  objectionable  commodities  or  to 
promote  objectionable  transactions.  The  goods  or  transactions 
which  may  thus  be  excluded  from  interstate  commerce  may  be 
objectionable  either  because  they  are  dangerous  to  the  public 
morals,  health,  or  welfare,  or  because  they  are  to  be  used  in 
violation  of  the  legitimate  police  regulations  of  the  state.  The 
question  which  remains  for  consideration  is  whether  or  not  a 
still  more  extensive  national  police  power  may  properly  be  derived 
from  the  commerce  clause  by  allowing  Congress  to  deny  the 
privileges  of  interstate  commerce  to  commodities  which  are  harm- 
less in  their  nature  and  the  use  to  which  they  are  to  be  put,  but 
which  are  produced  under  conditions  which  Congress  deems 
objectionable.  This  problem  will  be  dealt  with  in  the  concluding 
section  of  this  article. 


452  MINNESOTA  LAW  REVIEW 


IV.     REGULATIONS   DENYING   THE   PRIVILEGES   OF   INTERSTATE 

COMMERCE  TO   HARMLESS   GOODS   PRODUCED   UNDER 

OBJECTIONABLE  CONDITIONS — THE  FEDERAL 

CHILD  LABOR  LAW 

IN  PASSING  the  Keating-Owen  Child  Labor  Law1  Congress 
plunged,  probably  with  some  misgivings,  into  what  was  expected 
to  prove  a  new  field  of  national  police  regulation.  The  act  for- 
bade the  shipment  in  interstate  commerce  of  the  products  of 
mines  and  factories  in  which,  within  thirty  days  prior  to  their 
shipment  in  such  commerce,  child  labor  had  been  employed.  It 
was  an  entirely  novel  exercise  of  the  power  to  regulate  com- 
merce. Even  those  who  deny  that  the  unique  character  of  the 
act  created  any  serious  constitutional  difficulty  readily  agree  that 
it  stands  in  a  class  by  itself  as  an  exercise  of  congressional 
authority.  Hitherto  Congress  had  exercised  a  national  police 
power  under  the  commerce  clause  in  two  general  ways :  first,  to 
protect  interstate  commerce  from  injury  and  obstruction ;  second, 
by  refusing  to  allow  it  to  be  used  to  further  the  distribution  of 
obnoxious  commodities  or  the  consummation  of  injurious  de- 
signs. Wherever  Congress  had  resorted  to  prohibitions  of  inter- 
state commerce  the  prohibition  had  been  justified  upon  the  harm- 
ful nature  of  the  thing  excluded;  harmful  either  to  commerce 
itself  or  harmful  in  the  use  to  which  it  was  put.  The  goods 
excluded  by  the  Child  Labor  Law,  however,  were  themselves 
entirely  harmless  and  legitimate  in  character,  and  harmless  and 
legitimate  also  in  the  use  to  which  they  were  to  be  put;  their 
harmfulness  consisted  in  the  fact  that  they  were  produced  under 
conditions  injurious  to  the  public  welfare.  Like  an  illegitimate 
child,  they  were  made  to  bear  the  taint  of  the  evil  which  brought 
them  into  existence;  the  disability  which  attached  to  them  was 
created  not  because  Congress  in  any  way  objected  to  having 
that  kind  of  goods  distributed  through  interstate  commerce  but 

*Continued  from  3  MINNESOTA  LAW  REVIEW  412. 

1  Act  of  September  1,  1916,  39  Stat.  at  L.  675,  Chap.  432. 


THE  NATIONAL  POLICE  POWER  453 

because  it  wished  to  make  it  unprofitable  to  employ  children  in 
the  manufacture  of  any  kind  of  goods.  The  doctrine  of  the 
Child  Labor  Law  would  have  extended  enormously  the  scope 
of  the  national  police  power  under  the  commerce  clause  by 
placing  within  congressional  regulation  the  conditions  .under 
which  any  articles  of  interstate  commerce  are  produced. 

The  history  of  the  movement  for  a  federal  child  labor  law 
shows  that  movement  to  have  been  in  the  main  a  trial  and  error 
search  for  constitutionality.  The  most  dangerous  opposition  to 
such  a  law  did  not-  come  from  the  friends  of  child-labor,  a 
group  which  grows  constantly  smaller  and  more  silent;  nor  did 
it  come  from  the  "states  rights"  advocates,  who,  on  grounds  of 
policy  and  expediency,  objected  to  the  placing  of  child  labor 
under  uniform  national  control — for  few  intelligent  persons  are 
now  prepared  to  deny  that  there  is  small  hope  for  an  effective 
suppression  of  the  child  labor  curse  in  the  divergent  legislation 
of  forty-eight  states.  On  the  contrary,  the  opposition  which 
counted  most  came  from  those  who,  while  sympathising  with 
the  objects  of  the  law,  honestly  doubted  that  there  was  any  sound 
constitutional  basis  upon  which  a  child  labor  law  under  the  com- 
merce clause  could  rest;  who,  in  the  apt  phrase  of  one  of  their 
number,  could  not  convince  themselves  "that  'accroachment  of 
power'  is  expedient  when  benevolent,  and  that,  though  a  child  is 
entitled  to  protection,  the  constitution  is  not."2  This  was  ap- 
parent from  the  very  outset.  The  first  federal  child  labor  bill 
was  introduced  into  the  Senate  in  1906  by  Senator  Albert  J. 
Beveridge  of  Indiana.  This  pioneer  bill  forbade  any  interstate 
carrier  to  transport  the  products  of  any  mine  or  factory  in  which 
children  under  fourteen  years  of  age  were  employed ;  and  to 
make  the  bill  effective  the  management  of  any  establishment 
desiring  to  ship  goods  in  interstate  commerce  was  compelled  to 
give  the  common  carrier  a  statement  that  no  such  children  were 
employed  in  its  plant.3  In  a  brilliant  speech  extending  over  three 


2  Green,  The  Child   Labor   Law  and  the   Constitution,   111.   Law   Bui., 
April,  1917,  p.  6. 

3  The  portions  of  this  bill  which  are  of  interest  in  this  connection  are 
as  follows :  "Be  it  enacted     .     .     .     That  six  months  from  and  after  the 
passage  of  this  act  no  carrier  of  interstate  commerce  shall  transport  or 
accept  for  transportation  the  products  of  any  factory  or  mine  in  which 
children  under  fourteen  years  of  age  are  employed  or  permitted  to  work, 
which  products  are  offered  to  said  interstate  carrier  by  the  firm,  person, 
or  corporation  owning  or  operating  said  factory  or  mine,  or  any  officer  or 


454  MINNESOTA  LAW  REVIEW 

days  Senator  Beveridge  set  forth  the  need  for  such  legislation 
and  defended  its  constitutionality.4  The  most  distinguished  legal 
talent  in  the  Senate  was  drawn  into  this  debate ;  and  it  was  plain 
to  see  that  with  but  few  exceptions  their  views  of  its  validity 
ranged  from  skepticism  to  the  clear  conviction  that  it  was  un- 
constitutional.5 The  bill  never  became  law,  and  the  Judiciary 
Committee  of  the  House  of  Representatives  to  which  it  was 
referred  made  a  report  setting  forth  its  belief  that  the  bill  was 
clearly  invalid.6  With  the  retirement  of  Mr.  Beveridge  from  the 
Senate,  the  active  efforts  of  congressmen  to  secure  federal  legis- 
lation upon  the  problem  of  child  labor  for  the  time  being  ceased. 
The  Keating-Owen  bill  was  the  successor  to  the  Beveridge 
bill.  As  introduced  into  the  House,  it  forbade  the  shipment  in 
interstate  commerce  of  goods  produced  in  whole  or  in  part  by 
the  labor  of  children  under  fourteen  years  of  age.  This  bill  was 
not  wholly  satisfactory  to  the  National  Child  Labor  Committee 
which  was  sponsoring  it,  because  placing  the  prohibition 
merely  upon  child-made  goods  narrowed  considerably  the  scope 
of  the  act;  though  there  was  a  belief  that  a  stronger  argument 
could  be  made  for  its  constitutionality  than  for  one  broader  in 

agent  or  servant  thereof,  for  transportaton  into  any  other  state  or  territory 
than  the  one  in  which  said  factory  is  located. 

"Sec.  2.  That  no  carrier  of  interstate  commerce  shall  transport  or 
accept  for  transportation  the  products  of  any  factory  or  mine  offered  it  for 
transportation  by  any  person,  firm,  or  corporation  which  owns  or  operates 
such  factory  or  mine,  or  any  officer,  agent,  or  servant  of  such  person,  firm, 
or  corporation,  until  the  president  or  secretary  or  general  manager  of  such 
corporation  or  a  member  of  such  firm  or  the  person  owning  or  operating 
such  factory  or  mine  shall  file  with  said  carrier  an  affidavit  to  the  effect 
that  children  under  fourteen  years  of  age  are  not  employed  in  such  fac- 
tory or  mine."  The  full  text  of  this  bill  may  be  conveniently  found  at 
page  56  of  the  supplement  to  vol.  XXIX,  Annals  of  the  American  Acad- 
emy, etc.,  (1907). 

*  Cong.  Rec.  vol.  41,  pp.  1552-1557,  1792-1826,  1867-1883. 

5  It  was  probably  doubt  as  to  the  constitutionality  of  the  Beveridge  bjll 
which  led  Senator  Lodge  to  introduce  a  rival  bill  (S.  6730)  on  December 
5,  1906,  which  provided :  "That  the  introduction  into  any  state  or  territory 
or  the  District  of  Columbia,  or  shipment  to  any  foreign  country,  of  any 
article  in  the  manufacture  or  production  of  which  a  minor  under  the  age 
of  fourteen  years  has  been  engaged  is  hereby  prohibited."     The  second 
section  applied  a  similar  prohibition  to  goods  made  by  children  between 
fourteen  and  sixteen  years,  except  those  made  by  "any  minor  between  the 
ages  of  fourteen  and  sixteen  years  to  whom  has  been  granted  a  certificate" 
by  various  school  authorities  "testifying  to  the  fact  that  he  or  she  is  able 
to  read  and  write  the  English  language."    This  bill  was  referred  to  the 
Committee  on  Education  and  Labor,  but  it  seems  never  to  have  attracted 
much  notice  or  discussion. 

6  House  Rep.  No.  7304,  59th  Cong.,  Second  Session.     Part  of  the  argu- 
ment of  this  committee  is  quoted  in  Watson,  Constitution,  I,  pp.  532-534. 


THE  NATIONAL  POLICE  POWER  455 

scope.  When  the  bill  came  before  the  Committee  on  Interstate 
Commerce  in  the  Senate  it  was  changed  into  the  form  in  which 
it  was  finally  enacted,  a  form  which  made  it  a  far  more  effective 
law.7  In  this  form  it  forbade  not  merely  child-made  goods  but 
the  products  of  any  mine  or  factory  in  which  children  were  em- 
ployed. The  President  signed  the  bill  September  1,  1916,  and 
by  its  terms  it  became  effective  September  1,  1917.  Almost  im- 
mediately a  bill  was  filed  in  a  federal  district  court  in  North 
Carolina  by  a  father  on  behalf  of  himself  and  his  two  minor  sons 
asking  for  an  injunction  against  the  enforcement  of  the  act.  The 
district  court  held  the  act  unconstitutional,8  and  an  appeal  was 
taken  to  the  Supreme  Court  of  the  United  States.  On  June  3, 
1918,  the  Supreme  Court  handed  down  a  five  to  four  decision 
invalidating  the  law.9 

Few  questions  have  arisen  in  recent  years  in  our  constitutional 
law  upon  which  the  professional  opinion  of  the  country  has  been 
more  evenly  divided.  Few  questions  have  called  forth  on  both 
sides  abler  or  more  convincing  arguments.  Discussion  of  the 
question  had  been  kept  up  intermittently  during  the  dozen  years 
between  the  introduction  of  the  Beveridge  bill  and  the  decision 
of  the  Supreme  Court  upon  the  constitutionality  of  the  Keating- 
Owen  Act;  and  that  decision,  rendered  as  it  was  by  an  almost 
evenly  divided  court  with  a  vigorous  dissenting  minority,  called 


7  An  account  of  the  legislative  history  of  the  bill  is  found  in  Pamphlet 
No.  265  of  the  National  Child  Labor  Committee  (1916). 

The  relevant  portion  of  this  act  is  as  follows :  "Be  it  enacted  .... 
That  no  producer,  manufacturer,  or  dealer  shall  ship  or  deliver  for  ship- 
ment in  interstate  or  foreign  commerce  any  article  or  commodity  the 
product  of  any  mine  or  quarry,  situated  in  the  United  States,  in  which 
within  thirty  days  prior  to  the  time  of  the  removal  of  such  product  there- 
from children  under  the  age  of  sixteen  years  have  been  employed  or  per- 
mitted to  work,  or  any  article  or  commodity  the  product  of  any  mill, 
cannery,  workshop,  factory,  or  manufacturing  establishment,  situated  in 
the  United  States,  in  which  within  thirty  days  prior  to  the  removal  of  such 
product  therefrom  children  under  the  age  of  fourteen  years  have  been 
employed  or  permitted  to  work,  or  children  between  the  ages  of  fourteen 
years  and  sixteen  years  have  been  employed  or  permitted  to  work  more 
than  eight  hours  in  any  day,  or  more  than  six  days  in  any  week,  or  after 
the  hour  of  seven  o'clock  postmeridian,  or  before  the  hour  of  six  o'clock 
antemeridian." 

8  No  opinion  was  written.     This  decision  was  rendered  by  the  same 
judge  who,  according  to  press  reports,  has  recently  declared  unconstitu- 
tional the  clause  of  the  Revenue  Act  of  Feb.  24,  1919,  placing  a  ten  per 
cent  excise  tax  upon  the  net  profits  of  businesses  employing  children. 

»  Hammer  v.  Dagenhart,  (1918)  247  U.  S.  251,  62  L.  Ed.  1101,  38  S.  C. 
R.  529. 


456  MINNESOTA  LAW  REVIEW 

forth  a  new  grist  of  opinion.10  Even  now  the  layman  who  ap- 
proaches the  problem  without  definite  preconceptions  is  greatly 
in  danger  of  experiencing  a  painful  instability  of  opinion  and  of 
finding  himself  landed  finally  on  the  side  of  the  advocate  or  critic 
to  whose  arguments  he  last  gave  ear. 

There  would  be  small  justification  for  the  writer  to  add  to  the 
already  voluminous  literature  on  the  subject  another  argument 
for  or  against  the  validity  of  the  federal  Child  Labor  Law.  How- 
ever, a  discussion  of  the  national  police  power  under  the  com- 
merce clause  would  hardly  be  complete  without  some  attempt  to 
classify  the  precise  constitutional  issues  involved  in  this  attempt 
to  extend  that  power  so  radically.  An  effort  will  be  made, 
therefore,  to  set  forth  as  plainly  and  fairly  as  possible  the  argu- 
ments which  have  been  advanced,  first  by  those  who  have  believed 
the  act  to  be  unconstitutional  and  second  by  those  who  have 
regarded  it  as  valid.  In  each  case  the  reasoning  of  the  majority 
and  minority,  respectively,  of  the  Supreme  Court  will  be  briefly 
summarized  as  fitting  conclusions  to  the  briefs. 

THE  ARGUMENT  AGAINST  THE  CONSTITUTIONALITY  OF  THE  LAW 

Inasmuch  as  the  constitutionality  of  a  law  is  to  be  presumed 
until  disproved,  it  will  be  appropriate  to  present  first  the  argu- 
ments of  those  who  have  attacked  the  validity  of  the  law.11  These 
arguments  quite  naturally  differ  a  great  deal  in  persuasiveness, 
in  thoroughness  of  reasoning,  and  in  the  emphasis  placed  upon 
the  different  points  considered.  In  spite  of  this  diversity  it  is 
possible  to  melt  them  all  together  into  a  brief  composed  of  three 
major  arguments,  which  will  be  considered  separately.  The 
writer  has  made  no  special  effort  at  originality  in  setting  forth 


10  While  there  are  differences  between  the  provisions  of  the  Beveridge 
bill  and  the  Keating-Owen  Act,  these  differences  are  largely  in  the  method 
used  to  accomplish  the  legislative  purpose  and  not  differences  in  consti- 
tutional principle.     The  fundamental  issue  of  constitutionality  seems  to  be 
the  same  in  both,  and  the  arguments  for  and  against  the  measures  are 
applicable  to  both  alike. 

11  In  addition  to  the  arguments  presented  in  the  debate  in  Congress 
above  referred  to   (see  note  4,  supra),  the  Beveridge  bill  was  criticized 
on  constitutional  grounds  by  the  following  writers :  Bruce,  The  Beveridge 
Child  Labor  Bill  and  the  United  States  as  Parens  Patriae,  (1907)  5  Mich. 
Law  Rev.  627 ;  Maxey,  The  Constitutionality  of  the  Beveridge  Child  Labor 
Bill.  (1907)  19  Green  Bag  290;  Knox,  Development  of  the  Federal  Power 
to  Regulate  Commerce,  (1908)  17  Yale  Law  Jour.  135;  Willoughby,  Con- 
stitution, II,  Sec.  348;  Watson,  Constitution,  I,  pp.  523-534.    Before  the 


THE  NATIONAL  POLICE  POWER  457 

these  arguments,  but  has  attempted  to  present  a  sort  of  com- 
posite picture  made  up  of  all  of  them,  a  picture  in  which,  as  in 
the  real  composite  photograph,  the  details  of  each  component  are 
lost  to  view,  but  in  which  the  common  characteristics  stand  out 
vividly. 

1.  It  Is  Not  a  Regulation  of  Commerce.  It  is  important  to 
bear  in  mind  that  Congress  has  no  power  to  deal  openly  and 
directly  with  the  evil  of  child  labor.  It  merely  has  the  right  to 
regulate  interstate  commerce.  Therefore,  while  the  federal 
Child  Labor  Law  was  admittedly  passed  for  the  purpose  of  driv- 
ing child  labor  out  of  existence,  it  was  compelled,  from  the 
standpoint  of  constitutional  law,  to  seek  justification  not  as  a 
child  labor  law  but  as  a  regulation  of  interstate  commerce.  If 
it  can  be  shown  that  the  law  is  not  a  regulation  of  interstate  com- 
merce, then  its  constitutional  underpinning  collapses  and  it  must 
be  regarded  as  an  attempt  by  Congress  to  exercise  a  power  which 
it  does  not  possess  under  the  constitution.  Probably  without  ex- 
ception the  opponents  of  the  law  have  built  their  case  around  this 
central  and  vital  point,  that  it  is  not  a  regulation  of  commerce. 
The  arguments  advanced  in  support  of  this  proposition  may  be 
set  forth  as  follows : 

(a)  Not  Every  Regulation  Dealing  with  Commerce  Is  a 
Regulation  of  Commerce  in  the  Constitutional  Sense:  The  fact 
that  the  Child  Labor  Law  is  entitled  "An  Act  to  Prevent  Inter- 
state Commerce  in  the  Products  of  Child  Labor,  and  for  Other 
Purposes,"  coupled  with  the  fact  that  the  thing  which  the  law 
punishes  is  not  the  employment  of  children,  but  the  shipment 
in  interstate  commerce  of  certain  commodities,  raises  an  initial 
presumption  that  it  is  a  regulation  of  commerce.  Constitutional 


Keating-Owen  Act  was  declared  invalid,  its  constitutionality  was  attacked 
in  the  following  articles :  Green,  The  Child  Labor  Law  and  the  Constitu- 
tion, 111.  Law  Bui.,  April,  1917 ;  Gleick,  The  Constitutionality  of  the  Child 
Labor  Law.  (1918)  24  Case  and  Com.  801 ;  Hull,  The  Federal  Child  Labor 
Law,  (1916)  31  Pol.  Sci.  Quar.  519;  Krum,  Child  Labor,  (1917)  24  Case 
and  Com.  486.  See  also  the  general  criticism  in  Hough,  Covert  Legisla- 
tion and  the  Constitution,  (1917)  30  Harv.  Law  Rev.  801.  The  decision  of 
the  Supreme  Court  in  Hammer  v.  Dagenhart,  supra,  note  9.  was  discussed 
with  approval  in  the  following  articles :  Berry,  The  Police  Power  of  Con- 
gress under  Authority  to  Regulate  Commerce.  (1918)  87  Cent.  Law  Jour. 
314;  Bruce,  Interstate  Commerce  and  Child  Labor,  (1919)  3  MINNESOTA 
LAW  REVIEW  89;  Green,  Social  Justice  and  Interstate  Commerce.  (1918) 
208  North  Amer.  Rev.  387;  and  note,  (1919)  2  111.  Law  Bui.  126;  Taft, 
The  Power  of  Congress  to  Override  the  States,  (July,  1918)  15  Open  Shop 
Rev.  273.  See  also  editorial  (1918)  in  86  Cent.  Law  Jour.  441. 


458  MINNESOTA  LAW  REVIEW 

phrases  must  not,  however,  be  construed  "with  childish  literal- 
ness."  It  must  not  be  naively  assumed  that  everything  which 
is  labeled  a  regulation  of  commerce  or  which  in  some  way  affects 
commerce  is  a  regulation  of  commerce  in  the  constitutional  sense. 
The  extent  and  nature  of  the  power  of  Congress  over  interstate 
commerce  must  be  interpreted  in  the  light  of  the  purposes  for 
which  the  power  was  granted.12  For  instance,  the  governments 
of  the  state  and  nation  enjoy  a  power  of  taxation  which  in  "the 
extent  of  its  exercise  is  in  its  very  nature  unlimited  ;"13  yet  when 
the  state  of  Kansas  authorized  a  city  to  levy  a  tax  for  a  private 
and  not  a  public  purpose  the  Supreme  Court  of  the  United  States 
declared  that  the  levy  was  not  a  tax,  merely  "because  it  is  done 
under  the  forms  of  law  and  is  called  taxation,"  but  was  "a  decree 
under  legislative  forms."14  In  like  manner  the  Child  Labor  Law 
is  not  necessarily  a  regulation  of  commerce  simply  because  it  is 
done  under  the  forms  of  law  and  is  called  "a  regulation  of  com- 
merce." 

(b)  Power  to  Regulate  Interstate  Comjnerce  Was  Given  to 
Promote  and  Not  to  Destroy  Commerce:  If  we  had  no  light 
whatever  upon  the  purposes  for  which  the  power  to  regulate 
commerce  was  given  to  Congress  by  the  framers  of  the  consti- 
tution, it  would  still  be  reasonable  to  argue  that  the  power  to 
"regulate"  does  not  include  any  general  power  to  "destroy"  or  to 
"prohibit"  commerce.  A  grant  of  "the  power  to  regulate  neces- 
sarily implies  the  existence  of  the  thing  to  be  regulated."15 
Where  power  has  been  given  to  state  legislatures  or  city  councils 
to  "regulate"  the  liquor  traffic  the  courts  have  held  that  no  au- 
thority was  thereby  given  to  "prohibit"  such  traffic.16  It  is  logical 
to  assume  that  the  power  to  regulate  commerce  should  be  thought 
of  as  "a  power  to  regulate  acts  of  commerce  so  as  to  promote  the 
good  or  prevent  the  evil  that  might  flow  from  those  acts."17 
While  it  might  properly  include  the  power  to  make  all  necessary 
rules  to  protect  commerce  and  promote  its  efficiency  and  to  pre- 

12  This  point  is  clearly  developed  by  Professor  Green,  op.  cit.,  111.  Law 
Bui.,  note  11,  supra. 

"Loan  Association  v.  Topeka,  (1874)  20  Wall.  (U.S.)  655;  22  L.  Ed. 
455. 

"  Ibid. 

15  Watson.  Constitution,  I.  p.  532,  citing  State  v.  Clark,  54  Mo.  17;  State 
v.  McCann,  72  Tenn.  [4  Lea]   1. 

16  Watson,  op.  cit.,  p.  532. 

17  Green,  op.  cit.,  111.  Law  Bui.  13. 


THE  NATIONAL  POLICE  POWER  459 

vent  the  injury  to  the  national  welfare  which  might  flow  from 
the  acts  and  transactions  of  commerce,  it  cannot  be  held  to 
include  the  authority  to  prohibit  commerce  in  innocent  and  harm- 
less commodities. 

But  we  are  not  entirely  in  the  dark  as  to  the  purposes  for 
which  the  "fathers"  placed  the  power  to  regulate  commerce  in 
the  hands  of  Congress.  While  the  debates  in  the  Convention  of 
1787  do  not  throw  much  light  on  the  subject,  the  whole  history 
of  the  Confederation  as  well  as  the  contemporary  literature  of 
the  period  would  seem  to  indicate  a  hope  and  desire  that  Con- 
gress would  bring  about  freedom  of  commercial  intercourse, 
freedom  which  would  replace  the  oppressive  and  mutually  re- 
taliatory obstructions  which  emanated  from  the  jealousies  of 
the  separate  states.  There  was  apparently  no  thought  that 
Congress  was  being  given  power  by  the  new  constitution  to 
prohibit  commerce  in  legitimate  articles  because  it  disapproved 
of  the  local  conditions  under  which  they  were  produced.  While 
the  Convention  of  1787  went  out  of  its  way  to  forbid  in  express 
terms  any  congressional  interference  with  the  importation  of 
slaves  prior  to  1808,18  yet  it  made  no  effort  to  prevent  Congress 
from  excluding  from  commerce  the  products  of  slave-labor, — 
an  exclusion  clearly  in  line  with  the  Child  Labor  Law — quite  as 
though  it  assumed  that  Congress  had  no  such  authority.  Cer- 
tainly it  can  hardly  be  believed  that  either  the  framers  of  the 
constitution  or  the  conventions  which  ratified  it  had  any  idea 
that  they  had  given  to  Congress  any  power  under  the  commerce 
clause  to  knife  the  institution  of  slavery  in  the  back. 

It  has  been  forcefully  argued  that  since,  prior  to  the  adoption 
of  the  constitution,  the  several  states  enjoyed  full  and  sovereign 
power  to  prohibit  commerce  with  the  other  states,  as  any  inde- 
pendent nation  might  prohibit  it,  and  that  since  the  states  gave 
up  their  power  to  Congress  and  made  that  power  of  Congress 
plenary  and  exclusive,  it  must  therefore  follow  that  Congress 
received  all  the  power  that  the  states  gave  up.19  Otherwise  what 
became  of  it?  The  answer  is  that  it  went  back  into  the  hands 
of  the  people,  the  same  "people"  who  hold  all  the  other  powers 
of  government  "not  delegated  to  the  United  States  by  the  Con- 


18  Art.  I,  Sec.  9.    On  this  point  see  Green,  op.  cit,  North  Amer.  Rev., 
note  11,  supra. 

19  Infra,  p.  472. 


460  MINNESOTA  LAW  REVIEW 

stitution"  nor  "reserved  to  the  States  respectively."20  Indeed, 
it  is  quite  within  reason  to  suppose  that  the  framers  of  the  con- 
stitution consciously  intended  to  wipe  out  of  existence  entirely 
any  power  to  prohibit  interstate  commerce  in  legitimate  com- 
modities by  withdrawing  that  power  from  the  individual  states 
which  had  abused  it  and  by  failing  to  confer  it  upon  Congress 
which  might  abuse  it. 

(c)  In  Its  Real  Purpose  and  Effect  the  Law  Has  Nothing  to 
Do  with  Interstate  Commerce :  The  contention  that  the  Child 
Labor  Law  is  not  a  regulation  of  interstate  commerce  in  the 
constitutional  sense  has  been  most  frequently  and  cogently 
grounded  upon  the  fact  that  the  purpose  and  effect  of  the  act 
is  to  prohibit  child  labor,  something  quite  remote  from  the  act 
of  shipping  commodities  in  interstate  commerce.  "Its  purpose 
and  effect  are  to  benefit  children  and  not  to  benefit  commerce."21 
Thus  the  statute  is  looked  upon  as  somehow  fraudulent,  or  mis- 
branded.  This  argument  is  presented  in  several  ways. 

It  has  been  urged  by  some  that  the  Child  Labor  Law  is  in 
effect  a  denial  by  Congress  of  the  privileges  of  interstate  com- 
merce as  a  penalty  for  doing  things  of  which  Congress  does  'not 
approve  but  which  it  has  no  power  to  prohibit  directly.  This  has 
been  aptly  expressed  in  this  way:  "Plainly  the  reason  for  the 
statute  must  be  stated  in  the  first  instance  in  this  form :  'The 
state  does  not  like  what  you  are  doing.  Therefore  it  has  for- 
bidden you  to  do  something  else — ship  certain  goods — not  be- 
cause that  is  in  the  least  degree  objectionable,  but  because  the 
state  thinks  it  can  in  this  way  make  you  so  uncomfortable 
that  you  will  quit  employing  children."22  In  commenting  on  the 
case  in  which  the  Supreme  Court  held  the  law  invalid,  ex- 
President  Taft  said :  "The  majority  of  the  court  decided  that  this 
was  an  attempt  by  Congress  to  regulate  the  use  of  child  labor 
in  the  state.  Will  any  man  say  that  this  was  not  its  purpose? 
It  was  a  congressional  threat  to  the  state,  'Unless  you  make  your 
labor  laws  to  suit  us  we  shall  prevent  your  use  of  interstate 
commerce  for  the  sale  of  your  goods.'  "23  In  short,  when  Congress 
uses  its  power  over  commerce  as  a  "club  for  belaboring  persons 

20  Constitution  of  the  United  States,  Amendment  X. 

21  Green,  op.  cit.,  111.  Law  Bui.,  note  11,  supra. 

22  Ibid. 

23  Taft,  op.  cit.,  note  11,  supra. 


THE  NATIONAL  POLICE  POWER  461 

whose  habits  it  does  not  approve,"24  its  action  ought  in  reason  to 
be  regarded  as  a  regulation  not  of  the  club  but  of  the  thing  or 
person  clubbed. 

Others  have  laid  emphasis  in  this  connection  on  the  fact  that 
the  statute  is  in  effect  a  regulation  of  manufacturing  or  produc- 
tion. It  is  then  pointed  out  that  manufacturing  is  antecedent  to 
and  wholly  separate  from  commerce  and  transportation  and  that 
the  authority  of  Congress  extends  only  to  the  latter.25 

It  is  further  suggested  that  the  purpose  and  effect  of  the  act 
is  to  regulate  the  relations  between  employers  and  employees 
who  are  not  themselves  engaged  in  the  processes  of  interstate 
commerce,  and  to  regulate  them  in  respect  to  a  matter  that  in 
no  way  concerns  interstate  commerce, — namely,  the  age  of  the 
employee.  In  the  Adair  case26  Mr.  Justice  Harlan  pointed  out 
that  a  regulation  of  the  relations  between  master  and  servant  in 
respect  to  the  membership  of  employees  in  a  labor  union  did  not 
bear  sufficiently  close  connection  to  interstate  commerce  to  be 
regarded  as  a  legitimate  regulation  of  that  commerce.  The 
regulation  imposed  upon  employers  by  the  Child  Labor  Law  is 
thought  to  be  still  less  closely  related  to  interstate  commerce. 

It  is  quite  natural  that  those  who  attack  the  Child  Labor  Law 
on  the  ground  that  it  is  too  remote  from  interstate  commerce 
to  be  a  legitimate  regulation  of  it  should  be  challenged  to  show 
that  the  law  is  less  a  regulation  of  commerce  than  the  Lottery 
Act,  the  Pure  Food  Act,  the  White  Slave  Act,  and  the  other 
statutes  by  which  Congress  has  prohibited  commerce  in  various 
commodities.  The  friends  of  the  law  claim  that  the  only  possible 
distinction  between  the  Child  Labor  Law  and  these  other  acts 
the  validity  of  which  is  no  longer  open  to  question  is  that  in  the 
one  case  Congress  uses  its  power  over  interstate  commerce  to 
protect  the  producer  and  in  the  other  case  to  protect  the  con- 
sumer. This  distinction,  it  is  urged,  is  wholly  irrelevant  and 
immaterial  so  far  as  any  question  of  the  constitutional  limits  of 

24  Green,  op.  cit.,  North  Amer.  Rev.,  note  11,  supra. 

25  The  cases  usually  relied  on  to  support  this  view  are  United  States 
v.  E.  C.  Knight  Co.,  (1895)  156  U.  S.  1,  39  L.  Ed.  325,  15  S.  C.  R.  249; 
Kidd  v.  Pearson,  (1888)  128  U.  S.  1,  32  L.  Ed.  346,  9  S.  C.  R.  6;  In  re 
Greene,  (1892)  52  Fed.  104. 

2«  Adair  v.  United  States.  (1908)  208  U.  S.  161,  52  L.  Ed.  436.  28 
S.  C.  R.  277,  13  Ann.  Cas.  764.  Professor  Goodnow  severely  criticizes 
the  use  of  the  Adair  case  as  an  authority  to  prove  the  Child  Labor  Law 
not  a  regulation  of  commerce.  See  Social  Reform  and  the  Constitution, 
87. 


462  MINNESOTA  LAW  REVIEW 

congressional  power  over  commerce  is  concerned,  since  there  is 
nothing  in  the  constitution  nor  in  the  decisions  of  the  Supreme 
Court  to  indicate  that  the  consumer  is  any  more  entitled  to  pro- 
tection through  any  exercise  of  the  commerce  power  than  is  the 
producer.27 

It  seems  clear  that  this  distinction  between  regulations  wrhich 
guard  the  interests  of  the  consumer  and  those  which  seek  to 
improve  the  condition  of  the  producer  has  been  given  a  promi- 
nence by  writers  on  both  sides  of  this  controversy  which  has 
tended  to  obscure  what  the  opponents  of  the  law  regard  as  the 
vital  distinction  between  it  and  the  police  regulations  which 
Congress  has  previously  enacted  under  the  commerce  clause.  This 
distinction  is  that  in  the  Lottery  and  White  Slave  Acts  Congress 
has  used  its  power  over  interstate  commerce  to  prevent  evils 
which  might  be  said  to  result  in  the  sense  of  actual  causation  from 
the  acts  or  processes  of  interstate  commerce.  "In  all  of  these 
cases,  the  introduction  of  the  thing  carried  into  the  state  is  an 
act  of  evil  tendency.  Introducing  it  contributes  to  produce  evil; 
it  is  a  part  of  a  course  of  action  by  which  evil  is  consummated."2 
These  acts  are  all  "regulations  of  commerce  made  with  a  view 
to  the  results  that  may  flow  from  the  commerce  regulated;  to 
prevent  evils  that,  unregulated,  it  might  produce,  or  to  promote 
benefits  that,  unregulated,  it  might  not  produce."29  But  the  Child 
Labor  Law  does  not  prevent  any  evil  which  can  be  said  to  result 
from  the  acts  or  transaction  of  interstate  commerce.  The  curse 
of  child  labor  cannot  be  said  to  be  promoted  by  the  freedom  of 
the  employer  of  children  to  ship  his  products  in  interstate  com- 
merce simply  because  he  might  cease  to  employ  children  if  that 
freedom  were  denied  to  him,  any  more  than  it  can  be  said  that 
child  labor  is  promoted  by  free  education  because  those  who  now 
employ  children  might  cease  to  do  so  if,  because  of  that,  they 
were  denied  the  right  to  send  their  children  to  the  public  schools. 
It  cannot  be  said,  therefore,  that  when  Congress  passed  the  Child 
Labor  Law  it  was  preventing  the  use  of  interstate  commerce  as 
a  means  of  promoting  a  national  evil,  since  the  evil  in  question 
is  not  in  any  reasonable  sense  promoted  by  the  uninterrupted 
flow  of  interstate  commerce.  This  fact  makes  clear  the  distinc- 


« Infra,  p.  475. 

28  Green,  op.  cit.,  North  Amer.  Rev.,  note  11,  supra. 

29  Ibid. 


THE  NATIONAL  POLICE  POWER  463 

tion  between  this  act  and  the  other  instances  in  which  Congress 
has  exercised  police  power  under  the  commerce  clause. 

It  would  seem  that  those  who  regard  the  Child  Labor  Law 
as  just  as  real  and  thoroughgoing  a  regulation  of  commerce  as 
the  Lottery  Act  or  the  White  Slave  Act  have  trod,  perhaps  un- 
consciously, the  following  steps:  (1)  By  passing  these  regula- 
tions of  commerce,  the  Lottery  Act  and  so  forth,  Congress  has 
openly  intended  to  protect  the  public  morals,  health,  and  safety, 
and  has  exercised  a  police  power.  (2)  Therefore  Congress  en- 
joys a  broad  police  power  in  the  exercise  of  which  it  may  set  up 
any  type  of  control  over  interstate  commerce  which  will  result 
in  benefit  to  the  public  morals,  health,  and  safety.  (3)  The 
exclusion  of  the  output  of  child  labor  factories  from  interstate 
commerce  will  result  in  great  good  to  the  nation  by  safeguarding 
its  children.  (4)  Therefore  the  Child  Labor  Law  is  a  proper 
exercise  of  this  police  power  of  Congress  under  the  commerce 
clause  and  should  be  regarded  with  no  more  suspicion  or  disfavor 
than  the  White  Slave  Act  or  the  Lottery  Act,  which  have  also 
protected  the  national  health,  morals,  and  general  welfare.  Now 
the  opponents  of  the  Child  Labor  Law  believe  that  there  is  a  non 
sequitur  between  (1)  and  (2).  It  does  not  follow  from  the 
authority  of  the  Lottery  Case30  and  the  Hoke3i  case  that  Con- 
gress has  a  police  power  unlimited  in  scope  and  limited  only  in 
the  means  available  for  its  exercise.  Congress  has  police  power, 
but  only  such  as  can  be  exercised  within  the  limits  of  the  domain 
under  congressional  control — interstate  commerce.  This  police 
power  extends  to  the  suppression  of  any  evil  which  threatens 
interstate  commerce  or  arises  from  or  is  being  consummated  by 
that  commerce.  Now  the  evil  of  child  labor  does  not  exist  with- 
in the  domain  of  interstate  commerce;  it  exists  where  the  chil- 
dren are  employed.  "The  menace  in  the  case  of  child  labor  is 
over  and  done  with  when  the  product  is  manufactured.  .  .  . 
The  exercise  of  the  police  power  in  prohibiting  the  use  of  inter- 
state transportation  for  such  products  will  operate  of  course  as 
a  deterrent.  But  it  seems  clear  that  thereby  the  police  power 
becomes  operative  outside  of  the  domain  of  interstate  commerce. 
And  beyond  the  borders  of  that  domain  the  police  power  of 


3°  (1903)  188  U.  S.  321,  47  L.  Ed.  492,  23  S.  C.  R.  321. 
si  (1913)  227  U.  S.  308,  57  L.  Ed.  523,  33  S.  C.  R.  281. 


464  MINNESOTA  LAW  REVIEW 

Congress,  like  the  king's,  writ  beyond  his  kingdom,  does  not 
run."32 

This  is  not  a  matter  of  inquiring  into  congressional  motives 
and  invalidating  a  law  because  those  motives  were  disingenuous. 
It  is  purely  a  question  of  power.  The  act  fails  as  a  regulation 
of  commerce  not  because  its  purpose  and  effect  are  to  prohibit 
child  labor  but  because  the  child  labor  prohibited  has  nothing  to 
do  with  interstate  commerce.  If  interstate  railroads  employed 
children,  Congress  could  doubtless  forbid  the  employment  of  chil- 
dren in  interstate  commerce,  just  as  it  has  prevented  cruelty  to 
animals  while  they  are  being  transported  by  an  interstate  car- 
rier.33 Such  a  law  would  deal  with  an  evil  which  existed  within 
the  domain  of  interstate  commerce  and  not  an  evil  which  is  over 
and  done  with  before  the  commerce  the  power  to  regulate  which 
forms  the  basis  of  congressional  action  begins. 

The  opponents  of  the  Child  Labor  Law  argue  further  that 
the  extensive  and  arbitrary  power  which  Congress  has  used  to 
prohibit  foreign  commerce  in  various  commodities  constitutes 
no  authority  for  the  exercise  of  a  similar  power  over  interstate 
commerce.  The  power  of  Congress  over  foreign  commerce  is 
more  extensive  than  over  interstate  commerce.  Several  reasons 
support  this  view.  In  the  first  place,  the  commerce  clause  is  not 
the  exclusive  source  of  the  power  which  Congress  enjoys  over 
foreign  commerce.  The  power  over  foreign  commerce  derived 
from  the  commerce  clause  is  supplemented  by  the  power  derived 
from  the  sovereign  authority  of  the  federal  government  to  regu- 
late its  relations  with  other  countries.34  In  the  second  place, 
assuming  that  the  word  "regulate"  used  in  the  commerce  clause 
means  the  same  and  bestows  the  same  power  upon  Congress  in 
regard  to  both  interstate  and  foreign  commerce,  nevertheless 
there  are  certain  constitutional  limitations  which  operate  as  re- 
strictions upon  congressional  power  over  interstate  commerce 
which  do  not  apply  to  foreign  commerce  in  the  same  way.  The 
dissenting  opinion  of  Chief  Justice  Fuller  in  the  Lottery  Case35 
suggests  that  the  power  of  Congress  over  interstate  commerce  is 
subject  to  a  limitation  growing  out  of  the  "implied  or  reserved 
power  in  the  states"  which  would  not  apply  to  the  regulation  of 


32  Hull,  op.  cit,  524.  note  11,  supra. 

53  Act  of  Mar.  3,  1891,  26  Stat.  at  L.  833. 

34  Willoughby,  Constitution,  Sees.  64,  66,  374,  with  cases  cited. 

35  Note  30,  supra. 


THE  NATIONAL  POLICE  POWER  465 

interstate  commerce.  This  amounts  to  invoking  indirectly  the 
Tenth  Amendment  as  a  restriction  on  the  power  over  interstate 
commerce.  It  has  been  intimated  elsewhere  by  the  court  as  well 
as  by  other  authorities  that  while  the  complete  prohibitions  of 
foreign  commerce  would  not  deprive  any  one  of  property  with- 
out due  process  of  law,  since  no  individual  has  a  right  to  trade 
with  foreign  nations,36  a  similar1  prohibition  of  interstate  com- 
merce might  under  many  circumstances  amount  to  a  denial  of 
due  process  of  law  by  invading  the  constitutional  right  of  the 
citizen  to  engage  in  such  commerce.  In  the  third  place,  in  spite 
of  numerous  dicta  in  early  opinions  to  the  effect  that  the  scope 
of  congressional  authority  over  the  two  kinds  of  commerce  is 
identical,  there  is  not  a  single  case,  out  of  all  that  have  afforded 
an  opportunity  for  such  a  decision,  in  which  the  Supreme  Court 
has  decided  squarely  that  it  is.37 

In  similar  manner  it  is  pointed  out  that  the  police  power 
which  Congress  has  exercised  through  its  control  over  the  postal 
system,  a  power  which  has  been  used  to  exclude  from  the  mails 
a  wide  variety  of  things,  does  not  constitute  any  authority  for 
the  power  used  to  pass  the  Child  Labor  Law.  In  the  first  place, 
it  is  impossible  to  mention  any  act  by  which  Congress  has  actually 
excluded  any  commodity  from  the  mails  because  of  the  objec- 
tionable character  of  the  conditions  under  which  it  was  produced; 
and  in  the  second  place,  the  power  of  Congress  over  the  postal 
system  is  broader  than  over  interstate  commerce,  inasmuch  as 
Congress  has  explicit  authority  to  "establish  post  offices  and  post 
roads,"38  while  in  respect  to  interstate  commerce  the  power  given 
is  not  to  "establish"  but  to  "regulate."  It  may  very  properly  be 
argued  that  no  one  is  deprived  of  any  property  right  without  due 
process  of  law  by  being  denied  the  enjoyment  even  somewhat 
arbitrarily  of  privileges  and  facilities  which  Congress  may  not 

36  "As   a   result   of   the   complete    power    of    Congress    over    foreign 
commerce,   it  necessarily   follows  that  no   individual  has   a  vested  right 
to  trade  with  foreign  nations  which  is  so  broad  in  character  as  to  limit 
and  restrict  the  power  of  Congress  to  determine  what  articles  of  mer- 
chandise may  be  imported  into  this  country  and  the  terms  upon  which  a 
right  to   import   may   be   exercised.      This   being  true,   it   results   that  a 
statute   which    restrains   the    introduction   of    particular    goods    into   the 
United  States  from  considerations  of  public  policy  does  not  violate  the 
due  process  clause  of  the  Constitution."     Buttfield  v.  Stranahan,    (1904) 
192  U.  S.  470,  48  L.  Ed.  525,  24  S.  C  R.  349. 

37  Senator  Knox  made  this  statement  during  the  course  of  the  debate 
in  the  Senate  on  the  Beveridge  bill.     Cong.  Rec.  vol.  41.  p.  1879. 

38  Constitution  of  the  United  States,  Art.  I,  Sec.  8. 


466  MINNESOTA  LAW  REVIEW 

merely  create  but  may  also  destroy;  whereas  he  may  claim  a 
higher  degree  of  protection  for  his  right  to  engage  in  an  inter- 
state commerce  which  was  not  in  the  power  of  Congress  to  create 
but  merely  to  "regulate."39 

The  foregoing  analysis  presents  what  the  writer  regards  as 
the  more  important  arguments  which  have  been  used  to  prove 
that  the  Child  Labor  Law  is  not  a  regulation  of  commerce  in  the 
constitutional  sense.  A  somewhat  extended  discussion  of  the 
point  has  seemed  desirable,  because  it  is  without  question  the  point 
which  has  been  most  hotly  debated  and  which  has  seemed  to  the 
authorities  on  both  sides  of  the  case  the  most  vital  issue  involved 
in  the  whole  controversy. 

2.  It  Violates  the  Tenth  Amendment.  The  Tenth  Amend- 
ment reserves  to  the  states  or  to  the  people  all  powers  not  dele- 
gated to  the  federal  government  nor  prohibited  to  the  states.  It 
has  been  alleged  that  the  federal  Child  Labor  Law  contravenes 
this  amendment. 

Now  if  the  opponents  of  the  law  succeed  in  establishing  their 
contention  that  the  act  is  not  a  regulation  of  commerce,  then  it 
would  seem  to  follow  as  a  matter  of  course  that  Congress  has 
passed  a  law  which  cannot  be  justified  as  an  exercise  of  any 
delegated  power,  and  such  a  law  becomes  ipso  facto  an  invasion 
of  the  reserved  rights  of  the  states.  The  argument  has  not 
always  been  put,  however,  in  this  conservative  form.  More  than 
one  critic  of  the  law  has  urged  as  a  more  or  less  separate  objec- 
tion to  it  that  in  its  purpose  and  effect  it  invades  the  reserved 
rights  of  the  states  and  therefore  violates  the  spirit  if  not  the 
letter  of  the  Tenth  Amendment.  "It  was  conceded  by  all,"  de- 
clared ex-President  Taft,  "that  only  States  could  regulate  child 
labor.  .  .  .  Can  any  man  fairly  say  that  this  was  not  an 
effort  of  Congress,  by  duress,  to  control  the  discretion  of  the 

39  This  distinction  is  emphasized  with  clearness  by  Bruce,  op.  cit..  3 
MINNESOTA  LAW  REVIEW  96,  and  also  by  Willoughby,  op.  cit.,  Sec.  349. 
Both  writers  rely  upon  the  statement  of  the  court  in  Ex  parte  Jackson, 
(1877)  96  U.  S.  727,  24  L.  Ed.  877:  "We  do  not  think  that  Congress 
possesses  the  power  to  prevent  the  transportation  in  other  ways,  as 
merchandise,  of  matter  which  it  excludes  from  the  mails.  To  give  efficiency 
to  its  regulations  and  to  prevent  rival  postal  systems,  it  may  perhaps 
prohibit  the  carriage  by  others  for  hire,  over  postal  routes,  of  articles 
which  legitimately  constitute  mail  matter,  in  the  sense  in  which  those 
terms  were  used  when  the  Constitution  was  adopted,  consisting  of  letters, 
and  of  newspapers  and  pamphlets  when  not  sent  as  merchandise;  but 
further  than  this  its  power  of  prohibition  cannot  extend." 


THE  NATIONAL  POLICE  POWER  467 

State  intended  by  the  Constitution  to  be  free?"40  Professor 
Willoughby  regards  it  as  "an  attempt  upon  the  part  of  the  Federal 
Government  to  regulate  a  matter  reserved  to  the  control  of  the 
States."41  The  same  view  is  most  emphatically  expressed  by  the 
Judiciary  Committee  of  the  House  of  Representatives  in  reporting 
upon  the  Beveridge  bill.  They  said :  "The  lives,  health,  and 
property  of  the  women  and  children  engaged  in  labor  are  exclu- 
sively within  the  power  of  the  States,  originally  and  always  be- 
longing to  the  States,  not  surrendered  by  them  to  Congress. 
.  .  .  The  assertion  of  such  power  by  Congress  would  destroy 
every  vestige  of  State  authority,  obliterate  State  lines,  nullify  the 
great  work  of  the  framers  of  the  Constitution,  and  leave  the  State 
governments  mere  matters  of  form,  devoid  of  power,  and  ought 
to  more  than  satisfy  the  fondest  dreams  of  those  favoring  cen- 
tralization of  power."42 

While  courts  have  usually  refrained  from  invalidating  laws 
because  of  their  alleged  violation  of  the  "spirit"  of  the  constitu- 
tional prohibitions  in  cases  where  some  doubt  has  existed  as  to 
the  violation  of  the  letter,  attention  is  called  to  the  fact  that  one 
of  the  important  restrictions  upon  the  power  of  the  states  and  of 
the  federal  government  to  levy  taxes  has  been  grounded,  not  upon 
any  specific  clause  of  the  constitution,  but  upon  the  essential 
nature  of  the  federal  union.  This  is  the  restriction  upon  the  lay- 
ing by  either  government  of  taxes  upon  the  agencies,  property, 
functions,  or  instrumentalities  of  the  other.43  While  this  re- 
striction has  not  rested  upon  any  alleged  violation  of  the  Tenth 
Amendment,  it  has  been  argued  that  it  would  not  be  unreasonable 
for  the  Supreme  Court  to  use  it  as  authority  by  way  of  analogy 
for  recognizing  the  existence  of  certain  restrictions  upon  the 
exercise  by  Congress  of  its  power  to  regulate  commerce  when  by 


40  Taft,  op.  cit.,  p.  273,  note  11,  supra. 

41  Willoughby.  op.  cit.,  II,  Sec.  348 

42  Quoted  by  Watson,  op.  cit.,  pp.  532-534. 

43  Willoughby,  op.  cit,  I,  Sec.  40.     In  The  Collector  v.  Day,    (1870) 
11  Wall.  (U.S.)   113,  20  L.  Ed.  122.  the  court  said:  "It  is  admitted  that 
there    is    no    express    provision    in    the    Constitution    that    prohibits    the 
general  government  from  taxing  the  means  and  instrumentalities  of  the 
states,  nor  is  there  any  prohibiting  the  states  from  taxing  the  means  and 
instrumentalities  of  that  government.     In  both  cases  the  exemption  re:ts 
upon  necessary  implication,  and  is  upheld  by  the  great  law  of  self-pres- 
ervation ;   as  any  government,  whose  means  employed  in  conducting  its 
operations,  if  subject  to  the  control  of  another  and  distinct  government, 
can  exist  only  at  the  mercy  of  that  government."   See  also  Green,  op. 
cit..  111.  Law  Bui.  13. 


468  MINNESOTA  LAW  REVIEW 

such  regulation  the  essential  nature  of  the  federal  union  in  the 
matter  of  the  distribution  of  powers  is  being  threatened. 

3.  //  Takes  Liberty  and  Property  Without  Due  Process  of 
Law.  Even  if  it  be  granted,  however,  that  the  Child  Labor  Law 
is  a  regulation  of  commerce  in  the  constitutional  sense  and  that 
'it  is  not  a  violation  of  the  Tenth  Amendment,  it  has  still  been 
the  object  of  attack  as  an  act  which  deprives  persons  of  liberty 
and  property  without  due  process  of  law.  It  has  already  been 
made  clear44  that  any  exercise  of  a  national  police  power  must 
be  kept  within  the  limits  of  the  specific  restrictions  of  the  Bill 
of  Rights,  perhaps  the  most  important  of  which  is  the  due  process 
clause  of  the  Fifth  Amendment.45  The  argument  that  the  act 
is  a  violation  of  the  guarantee  of  due  process  of  law  has  taken 
two  forms. 

In  the  first  place,  it  has  been  urged  that  "the  right  to  liberty 
and  property  would  certainly  include  the  continuance  of  the  right 
of  interstate  traffic  in  goods  which  were  in  themselves  harmless 
and  innocent."46  No  one  can  be  said  to  enjoy  a  property  right  to 
ship  commodities  in  interstate  commerce  when  those  commodities 
are  harmful  or  when  the  shipment  itself  is  an  act  of  evil  tendency. 
But  any  prohibition  placed  by  Congress  upon  the  right  to  ship 
harmless  commodities  destined  for  harmless  uses  constitutes  an 
arbitrary  invasion  of  a  property  right  and  is  a  denial  of  due 
process  of  law. 

Now  those  who  deny  the  validity  of  the  Child  Labor  Law  do 
not  agree  among  themselves  that  there  is  a  property  right  to  ship 
goods  in  interstate  commerce.47  But  even  assuming  that  no  such 
right  does  exist,  it  is  still  urged  that  the  law  fails  of  due  process. 
It  is  well  established  that  any  state  may  prohibit  child  labor  with- 
out depriving  any  one  of  his  constitutional  rights ;  but  it  is  equally 
well  established  that  Congress  cannot  directly  prohibit  child  labor 
under  any  power  it  now  possesses.  Now  it  is  argued  that  even  if 
the  right  to  ship  harmless  goods  in  interstate  commerce  is  one 
which  Congress  under  the  commerce  clause  might  legitimately 
take  away  entirely,  it  would  still  be  a  denial  of  liberty  or  prop- 
erty without  due  process  of  law  for  Congress  to  make  the  con- 
tinued enjoyment  of  the  privileges  of  interstate  commerce  con- 

44  3  MINNESOTA  LAW  REVIEW  299. 

45  Constitution  of  the  United  States,  Amendment  V. 

46  Bruce,  op.  cit..  5  Mich.  Law  Rev.  636. 

47  See  infra,  p.  476. 


THE  NATIONAL  POLICE  POWER  469 

tingent  upon  abandoning  a  course  of  action  which  so  far  as  any 
possible  prohibition  by  Congress  is  concerned  a  person  has  a  per- 
fect right  to  pursue.  In  other  words,  Congress  cannot  withdraw 
a  privilege  which  can  be  enjoyed  only  under  its  permission,  for 
the  purpose  of  making  that  withdrawal  a  punishment  for  doing 
something  which  Congress  had  no  direct  authority  to  forbid.  Such 
an  exercise  of  power  by  Congress  rests  upon  the  same  principle 
as  a  state  statute  which,  while  not  directly  forbidding  child  labor, 
forbids  those  who  employ  children  "to  shave,  to  ride  in  an  auto- 
mobile, or  to  have  children  of  their  own."48  It  is  one  thing  to 
prohibit  child  labor  directly;  it  is  another  and  far  different 
thing  to  permit  the  continuance  of  child  labor  only  on  the  condi- 
tion of  the  forfeiture  of  a  right  or  privilege  shared  by  all  the 
other  members  of  the  community.  In  Western  Union  Telegraph 
Company  v.  Kansas49  the  Supreme  Court  held  that  the  plaintiff 
company  had  been  denied  due  process  of  law  by  a  statute  which 
made  its  admission  into  the  state  as  a  foreign  corporation — ad- 
mission which  it  was  granted  the  state  was  under  no  obligation 
whatever  to  allow — contingent  upon  payment  by  the  company  of 
taxes  which  the  state  was  without  constitutional  authority  to  im- 
pose. There  are  other  cases  in  which  a^similar  principle  has  been 
applied.50  It  is  in  the  light  of  the  authority  of  these  cases  and 
the  reasoning  set  forth  above  that  the  Child  Labor  Law  is  be- 
lieved to  work  a  denial  of  due  process  of  law. 

4.  The  Majority  Opinion  of  the  Supreme  Court.51  It  is 
unnecessary  to  dwell  at  length  upon  the  opinion  of  the  majority 
of  the  Supreme  Court  which  held  the  federal  Child  Labor  Law 
invalid.  That  opinion  was  reasoned  with  a  brevity  that  was 
entirely  surprising  considering  the  importance  of  the  question 
involved.  It  does  not  allude  in  any  way  to  the  contention  of  the 
plaintiff  that  the  act  works  a  denial  of  due  process  of  law.  The 
decision  rested  upon  two  points  :  first,  that  the  Child  Labor  Law  is 


48  Green,  op.  cit.,  111.  Law  Bui.  11.  The  most  effective  statement  of 
this  argument  is  found  in  Professor  Green's  article. 

«  (1910)  216  U.  S.  1,  54  L.  Ed.  355,  30  S.  C  R.  190. 

»<>Herndon  v.  Chicago,  etc.,  Ry.  Co.,  (1910)  218  U.  S.  135,  54  L.  Ed. 
970,  30  S.  C.  R.  633;  Harrison  v.  St.  Louis,  etc.,  R.  Co.,  (1914)  232  U.  S. 
318.  58  L.  Ed.  621,  34  S.  C.  R.  333;  New  York  Life  Ins.  Co.  v.  Head, 
(1914)  234  U.  S.  149,  58  L.  Ed.  332,  34  S.  C.  R.  879.  These  cases  cited 
by  Green,  op.  cit.,  111.  Law  Bui.  18. 

51  Written  by  Mr.  Justice  Day  and  concurred  in  by  Justices  White, 
VanDevanter,  Pitney,  and  McReynolds. 


470  MINNESOTA  LAW  REVIEW 

not  a  regulation  of  commerce,  second,  that  it  violates  the  Tenth 
Amendment. 

The  first  of  these  arguments  proceeds  along  familiar  lines. 
The  power  to  "regulate"  commerce  is  the  power  to  "prescribe  the 
rule  by  which  commerce  is  to  be  governed,"  and  does  not  include 
the  right  to  "forbid  commerce  from  moving  and  thus  destroying 
it  as  to  particular  commodities."  The  cases  in  which  Congress  has 
prohibited  interstate  commerce  in  certain  commodities  have  all 
rested  "upon  the  character  of  the  particular  subjects  dealt  with 
and  the  fact  that  the  scope  of  governmental  authority,  state  or 
national,  possessed  over  them  is  such  that  the  authority  to  pro- 
hibit is  as  to  them  but  the  exertion  of  the  power  to  regulate.  .  .  . 
In  each  of  these  instances  the  use  of  interstate  transportation  was 
necessary  to  the  accomplishment  of  harmful  results."  The  Child 
Labor  Law  does  not,  however,  regulate  transportation,  but  aims 
to  standardize  child  labor.  The  goods  shipped  are  harmless  and 
the  fact  that  they  may  be  intended  for  interstate  commerce  does 
not  make  them  articles  of  that  commerce  at  the  time  they  were 
produced.  There  is  no  force  in  the  argument  that  the  law  pre- 
vents unfair  competition  between  states  with  child  labor  laws  of 
different  standards.  So  also  there  are  many  conditions  which  give 
certain  states  advantages  over  others,  but  Congress  has  no  power 
to  regulate  local  trade  and  commerce  for  such  a  purpose. 

The  act  violates  the  Tenth  Amendment.  "The  grant  of  au- 
thority over  a  purely  federal  matter  was  not  intended  to  destroy 
the  local  power  always  existing  and  carefully  reserved  to  the 
states  in  the  Tenth  Amendment  to  the  Constitution."  Under  the 
law  Congress  "exerts  a  power  as  to  purely  Local  matters  to  which 
the  federal  authority  does  not  extend.  The  far  reaching  result  of 
upholding  the  act  cannot  be  more  plainly  indicated  than  by  point- 
ing out  that  if  Congress  can  thus  regulate  matters  entrusted  to 
local  authority  by  prohibition  of  the  movement  of  commodities  in 
interstate  commerce,  all  freedom  of  commerce  will  be  at  an  end, 
and  the  power  of  the  states  over  local  matters  may  be  elimi- 
nated, and  thus  our  system  of  government  be  practically  de- 
stroyed." 

THE  ARGUMENT  FOR  THE  CONSTITUTIONALITY  OF  THE  LAW 

The  constitutionality  of  the  Child  Labor  Law  has  probably 
been  discussed  more  frequently  and  at  greater  length  by  its 


THE  NATIONAL  POLICE  POWER  471 

friends  than  by  its  enemies.52  An  analysis  of  the  arguments  in 
support  of  the  law  indicates  that  they  clash  squarely  at  all  vital 
points  with  the  arguments  which  have  just  been  set  forth.  They 
may,  therefore,  be  grouped  under  the  same  three  headings. 

1.  It  Is  a  Regulation  of  Commerce  in  the  Constitutional  Sense. 
The  friends  of  the  Child  Labor  Law  have  bent  their  efforts  with 
special  care  to  proving  that  it  is  a  regulation  of  commerce  in  the 
constitutional  sense,  a  task  which  has  of  course  involved  disprov- 
ing the  arguments  of  their  opponents  that  the  law  is  not  such  a 
regulation.  This  task  has  been  approached  in  a  wide  variety  of 
ways  and  from  many  different  points  of  view.  The  writer  believes, 
however,  that  these  arguments  may  all  be  subsumed  under  three 
major  propositions,  which  if  established  would  prove  the  point  at 
issue.  These  will  be  treated  in  order. 

(a)  The  Poiver  to  Regulate  Interstate  Commerce  Includes 
the  Power  to  Prohibit  Entirely  Shipment  in  Such  Commerce  of 
Specified  Persons  and  Property :  In  the  first  place,  the  power  to 
prohibit  is  not  incompatible  with  the  power  to  regulate  commerce. 
Even  if  it  is  true  that  "the  power  to  regulate  implies  the  existence 
of  the  thing  regulated,"53  it  is  equally  true  that  "the  power  to 
prescribe  the  rule  by  which  commerce  is  carried  on  does  not 
negative  the  power  to  prescribe  that  certain-  commerce  shall  not 
be  carried  on.'!54  As  Mr.  Justice  Holmes  puts  it,  "Regulation 


52  Before  the   Supreme   Court  annulled  the   law,   the    following   dis- 
cussions had  appeared  supporting  its  constitutionality:  Goodnow,   Social 
Reform  and  the  Constitution,    (1911)   80;  MacChesney,   Constitutionality 
of  a  Federal  Child  Labor  Law,  (1915)  The  Child  Labor  Bui.  IV,  p.  155; 
Parkinson,   Brief   for  the   Keating-Owen   Bill,    (1916)    The   Child   Labor 
Bui.,   IV,  pt.  2,   p.  219;   Constitutional    Prohibitions   of   Interstate   Com- 
merce,   (1916)    16   Col.   Law   Rev.  367;   The  Federal  Child   Labor  Law, 
(1916)    31    Pol.    Sci.    Quar.    531;    Precedents    for    Federal    Child    Labor 
Legislation,    (1915)    The  Child   Labor  Bui.,  IV,   p.  72;   Troutman,   Con- 
stitutionality of  a  Federal  Child  Labor  Law,  (1914)  26  Green  Bag  154;  see 
also  note,  The  Use  of  the  Power  over  Interstate  Commerce  for  Police 
Purposes,  (1917)  30  Harv.  Law  Rev.  491.     Since  the  decision  in  Hammer 
v.  Dagenhart,  supra,  the  opinion  of  the  majority  has  been  criticized  in 
the  following  articles:  Gordon,  The  Child  Labor  Law  Case,    (1918)   32 
Harv.  Law  Rev.  45;  Jones,  The  Child  Labor  Decision,  (1918)  6  Cal.  Law 
Rev.    395;    Parkinson,   The  Federal    Child    Labor   Decision,    (1918)    The 
Child  Labor  Bui.,  (1918)  VII,  p.  89;  Powell,  The  Child  Labor  Decision, 
(1918)   The  Nation,  vol.  107,  p.  730;   The  Child  Labor  Law,  the  Tenth 
Amendment  and  the   Commerce   Clause,    (1918)    3  So.   Law   Quar.   175; 
see  also  note,  (1918)  27  Yale  Law  Jour.  1092,  and  (1918)   17  Mich.  Law 
Rev.  83. 

53  Note  15,  supra. 

54  Powell,  op.  cit.,  So.  Law  Quar. 


472  MINNESOTA  LAW  REVIEW 

means  the  prohibition  of  something,  and  when  interstate  com- 
merce is  the  matter  to  be  regulated  I  cannot  doubt  that  the  regu- 
lation may  prohibit  any  part  of  such  commerce  that  Congress 
sees  fit  to  forbid."55 

In  the  second  place,  there  is  evidence  to  indicate  that  the 
framers  of  the  constitution  intended  the  power  given  to  Congress 
to  regulate  interstate  commerce  to  include  the  power  to  prohibit 
such  commerce  in  certain  cases.  This  is  shown,  first,  by  the 
fact  that  they  intended  to  give  Congress  all  the  power  over  inter- 
state commerce  that  the  states  had  previously  had  and  this  in- 
cluded the  power  to  prohibit  such  commerce.56  It  is  shown,  sec- 
ondly, that  they  specifically  denied  to  Congress  the  right  to  pass 
any  law  prior  to  1808  which  should  prohibit  the  "migration  or  im- 
portation" of  slaves,57  a  denial  of  power  entirely  superfluous  un- 
less the  power  to  prohibit  such  commerce  existed,  in  the  absence 
of  such  denial. 

In  the  third  place,  the  power  to  regulate  foreign  commerce 
has  always  been  held  to  include  the  power  to  place  prohibitions 
upon  such  commerce,58  and  the  commerce  clause  gives  to  Congress 
the  same  power  over  interstate  as  over  foreign  commerce.  The 
friends  of  the  Child  Labor  Law  do  not  infer  from  this  that  Con- 
gress could  necessarily  impose  the  same  restrictions  upon  inter- 
state commerce  as  upon  foreign  commerce;  but  they  assert  that 
whatever  difference  there  may  be  exists  not  because  the  power 
exercised  is  the  power  to  regulate  in  the  one  case  but  not  in  the 
other,  but  because  the  limitations  of  due  process  of  law  affect 
the  power  to  regulate  in  different  ways.  In  other  words,  although 
the  constitutional  restrictions  on  that  power  may  vary  with  the 
kind  of  commerce,  the  power  to  "regulate"  remains  the  same. 
And  since  the  power  to  regulate  foreign  commerce  includes  the 
power  to  prohibit  it,  it  must  of  necessity  follow  that  the  power  to 
regulate  interstate  commerce  also  includes  the  power  to  impose 
prohibitions  upon  it. 

Finally,  it  is  only  necessary  to  refer  to  the  Lottery  Act,  the 
White  Slave  Act,  and  the  Pure  Food  Act  to  show  that  there  have 

55  Hammer  v.  Dagenhart,  note  9,  supra. 

56  This   argument   is   carefully   developed  by  Mr.   Parkinson,  op.   cit, 
Col.  Law  Rev.  370  et  seq. 

57  The  Constitution  of  the  United  States,  Art.  I,  Sec.  9. 

58  For  citation  of  cases  in  support  of  this  view  see  Parkinson,  op.  cit, 
The  Child  Labor   Bui.  225-228;   also  note  by  E.   B.  Whitney,    (1898)    7 
Yale  Law  Jour.  291. 


THE  NATIONAL  POLICE  POWER  473 

been  other  cases  in  which  the  Supreme  Court  has  viewed  with 
approval  the  exercise  by  Congress  of  the  power  to  prohibit  en- 
tirely interstate  commerce  in  certain  commodities. 

(b)  The  Power  to  Regulate  Interstate  Commerce  May  Be 
Used  for  the  Protection  of  Public  Health,  Morals,  Safety,  and 
Welfare  in  General:  This  point  might  perhaps  be  stated  in  this 
way :  a  regulation  of  commerce  does  not  cease  to  be  such  merely 
because  its  purpose  and  effect  are  to  eradicate  evils  over  which 
Congress  has  no  direct  control.  It  is  not  the  business  of  the 
Supreme  Court  to  pry  into  the  motives  which  prompt  Congress  to 
exercise  its  power  to  regulate  commerce.  Whatever  restrictions 
there  may  be  upon  the  power  by  reason  of  alleged  violations  of 
due  process  of  law,  the  power  to  regulate  commerce  may  properly 
be  used  by  Congress  to  remedy  any  evils  which  may  exist  before, 
during,  or  after  interstate  commerce  takes  place,  without  making 
such  action  any  less  truly  an  exercise  of  the  power  to  regulate 
such  commerce.  It  is  apparent  that  this  view  is  in  conflict  with 
the  position  of  the  opponents  of  the  Child  Labor  Law  who  argue 
that,  while  Congress  may  exercise  a  real  police  power  under  the 
commerce  clause,  that  police  power  is  limited  to  the  actual  do- 
main of  interstate  commerce  and  may  only  extend  to  the  prohibi- 
tion of  evils  existing  in  or  directly  promoted  by  such  commerce. 
The  friends  of  the  law,  in  short,  look  upon  interstate  commerce 
as  a  means  entrusted  to  Congress  to  be  used  in  any  manner  which 
will  promote  the  public  health,  morals,  and  safety ;  and  they  find 
in  the  Lottery  Act,  the  White  Slave  Act,  and  laws  of  similar  char- 
acter instances  in  which  Congress  has  used  the  commerce  power, 
not  to  protect  any  particular  group  of  people,  not  to  strike  at 
evils  which  are  limited  to  any  particular  locality,  but  to  protect 
the  nation  at  large  from  injury  or  danger.  The  evils,  in  other 
words,  do  not  need  to  have  any  particular  locus  to  be  within  the 
reach  of  congressional  police  power  under  the  commerce  clause, 
(c)  No  Distinctions  Exist  Between  This  Law  and  the  Other 
Police  Regulations  Based  on  the  Commerce  Clause  That  Would 
Make  It  Less  a  Regulation  of  Commerce  Than  They :  Those  who 
believe  the  Child  Labor  Law  to  be  constitutional  feel  that  trs 
efforts  to  distinguish  it  from  the  Lottery  Act  and  so  forth  and  to 
prove  that,  while  those  earlier  acts  were  bona  fide  regulations  of 
commerce,  the  Child  Labor  Law  is  not,  are  after  all  merely  ef- 
forts to  s.et  up  straw  men  for  the  purpose  of  knocking  them  down. 


474  MINNESOTA  LAW  REVIEW 

They  take  the  position,  first,  that  the  alleged  distinctions  do  not  in 
fact  exist;  and,  second,  that  if  they  did  exist  they  would  not 
prove  the  Child  Labor  Law  to  be  any  less  a  regulation  of  com- 
merce than  the  earlier  statutes  mentioned. 

In  support  of  the  first  point  it  is  contended  that  the  Child 
Labor  Law  does  not  stand  alone  in  excluding  from  interstate 
commerce  articles  in  themselves  harmless.  Lottery  tickets  are 
no  more  harmful  in  themselves  than  milk  tickets;  the  goods  ex- 
cluded by  the  Commodities  Clause59  are  in  all  respects  above  re- 
proach; the  anti-trust  statutes  forbid  the  shipment  of  goods  in- 
trinsically indistinguishable  from  any  other  articles  of  commerce. 
Nor  is  it  true  that  the  Child  Labor  Law  is  unique  in  that  it 
excludes  goods  when  rjo  danger  or  injury  can  result  from  their 
interstate  transportation.  The  other  police  regulations  passed  by 
Congress  under  the  commerce  clause  have  rested  usually  on  the 
ground  that  the  forbidden  shipments  were  "acts  of  evil  tendency." 
So  also  is  the  shipment  of  goods  manufactured  in  a  child  labor 
factory  an  act  of  evil  tendency.  It  promotes  child  labor  both  be- 
fore and  after  the  actual  shipment  takes  place :  before,  because  a 
producer  could  not  afford  to  continue  the  employment  of  children 
if  it  cut  him  off  from  interstate  markets;  after,  because  states 
which  may  honestly  desire  to  abolish  child  labor  feel  a  reluctance 
to  place  their  own  industries  at  the  mercy  of  the  competition  which 
results  from  the  shipping  in  from  other  states  of  goods  made  by 
children.  It  is  a  peculiarly  naive  logic  which  insists  that  a  cause 
must  always  chronologically  precede  an  effect,  and  that  interstate 
commerce  cannot  cause  or  promote  child  labor  because  the  im- 
mediate child  labor  is  over  before  the  immediate  goods  are  de- 
livered to  the  interstate  carrier.  The  manufacture  of  goods  is  a 
continuous  process,  and  its  effects  control  its  beginnings  quite 
as  much  as  with  lottery  tickets.  This  point  has  been  clearly  put 
in  language  which  is  worthy  of  quotation:  "Clearly  enough  the 
transportation  is  a  contributing  factor  to  the  employment  of  chil- 
dren, as  it  is  to  the  consumption  of  liquor  and  the  purchase  of 
lottery  tickets.  In  terms  of  physics,  the  transportation  is  a  pull 
in  the  one  case,  and  a  push  in  the  others.  The  matter  belongs, 
however,  to  the  realm,  not  of  physics,  but  of  economics.  And 
in  economics  the  push  and  the  pull  are  not  to  be  differentiated. 
In  so  far,  then,  as  the  majority  [of  the  Supreme  Court]  imply 

59  See  note  71,  (1919)  3  MINNESOTA  LAW  REVIEW  311. 


THE  NATIONAL  POLICE  POWER  475 

that  the  interstate  transportation  was  not  necessary  to  the  harmful 
results  aimed  at  by  the  Child  Labor  Law,  they  are  obviously  in 
error.  Unless  it  were  necessary,  the  law  would  have  been  idle 
and  useless,  no  employer  or  'next  friend'  of  children  would  have 
objected  to  it,  and  it  would  not  have  touched,  even  obliquely, 
matters  reserved  to  the  states."60  In  other  words,  just  as  the 
Mann  Act  forbids  the  use  of  interstate  commerce  as  a  facility 
in  carrying  on  the  white  slave  traffic,  so  the  Child  Labor  Law 
prohibits  such  commerce  from  being  used  to  promote  the  evil 
of  child  labor,  and  there  is,  accordingly,  no  difference  in  prin- 
ciple between  the  two  as  to  their  being  each  a  bona  fide  regu- 
lation of  interstate  commerce. 

But  in  the  second  place,  even  if  it  be  admitted  that  there  are 
important  distinctions  between  the  Child  Labor  Law  and  the 
other  regulations  enacted  under  the  commerce  clause,  those  dif- 
ferences do  not  have  any  bearing  whatever  upon  the  question 
whether  the  Child  Labor  Law  is  or  is  not  a  regulation  of  com- 
merce. The  distinction,  for  example,  that  the  Child  Labor  Law 
benefits  the  producer,  while  the  Lottery  Act  and  similar  statutes 
protect  the  consumer,  is  an  entirely  artificial  and  worthless  dis- 
tinction. The  enemies  of  the  law  are  challenged  to  show  any- 
thing in  the  commerce  clause  itself,  the  acts  of  Congress  passed 
in  pursuance  thereof,  and  the  decisions  of  the  United  States 
Supreme  Court,  which  in  any  way  suggest  that  a  prohibition  of 
interstate  commerce  loses  its  character  as  a  regulation  of  that 
commerce  in  the  constitutional  sense  because  it  is  the  consumer 
of  goods  shipped,  rather  than  the  producer,  who  receives  the 
benefit  therefrom.  To  hold  otherwise  is  to  inject  into  the  con- 
stitution something  which  the  framers  did  not  put  there.  "Pro- 
ponents [of  this  distinction]  are  standing  on  their  political  ideas 
of  what  ought  to  be  in  the  Constitution  rather  than  on  what  the 
Supreme  Court  has  said  is  there."61  In  like  manner,  even  if  it 
is  admitted  for  the  sake  of  argument  that  the  Child  Labor  Law 
excludes  harmless  commodities  from  interstate  cojnmerce,  or 
even  admitting  that  the  exclusion  established  is  arbitrary  and 
unreasonable,  this  would  not  prove  that  the  law  is  not  a  regula- 
.tion  of  commerce.  It  would  merely  prove  that  Congress  had 
regulated  commerce  in  such  a  way  as  to  deprive  persons  of 

60  Powell,  op.  cit,  So.  Law  Quar.  197. 

61  Parkinson,  op.  cit,  31  Pol.  Sci.  Quar.  537. 


476  MINNESOTA  LAW  REVIEW 

liberty  or  property  without  due  process  of  law.  In  the  Lottery 
Case  and  in  Clark  Distilling  Co.  v.  Western  Maryland  Ry.  Co.62 
the  Supreme  Court  plainly  intimated  that  power  to  exclude 
commodities  from  interstate  commerce  might  be  held  to  be  limited 
so  as  to  preclude  its  exercise  in  a  manner  palpably  arbitrary, 
but  in  each  of  these  cases  the  implication  is  very  plain  that  any 
such  limitation  would  arise  from  the  due  process  of  law  clause 
and  not  at  all  from  any  implied  narrowing  of  the  meaning  of 
the  word  "regulate"  as  used  in  the  commerce  clause.  What  the 
critics  of  the  law  have  done  in  using  the  distinctions  mentioned 
to  prove  that  the  Child  Labor  Law  is  not  a  regulation  of  com- 
merce is  to  employ  an  argument  "built  upon  a  due  process  dis- 
tinction and  then  unwarrantably  transferred  to  the  commerce 
clause."63 

2.  The  Child  Labor  Law  Does  Not  Work  a  Denial  of  Due 
Process  of  Law.  When  Senator  Beveridge  was  defending  the 
constitutionality  of  his  child  labor  bill  in  1906  he  took  the  posi- 
tion that  the  power  of  Congress  over  interstate  commerce  was 
absolute,  and  that  while  Congress  would  naturally  be  restrained 
by  considerations  of  policy  and  expediency  from  any  arbitrary 
and  unreasonable  exercise  of  that  power,  the  power  itself  was 
subject  to  no  constitutional  restrictions  -of  any  kind.64  This 
means,  of  course,  that  Congress  in  the  exercise  of  its  commerce 
power  is  not  restricted  by  any  limitations  arising  from  the  due 
process  of  law  clause  of  the  Fifth  Amendment. 

A  writer  on  the  subject  who  regards  the  law  as  unconstitu- 
tional upon  other  grounds  takes  the  position  that  there  is  no 
property  right  to  ship  products  in  interstate  commerce.  That 
even  if  there  were  such  a  right  it  would  be  a  "right  to  engage 
in  interstate  commerce  lawfully  regulated.  So,  if  the  regulation 
be  lawful,  the  property  right  has  existed  subject  to  the  regu- 
lation. And  to  assail  the  validity  of  the  regulation  by  the  due 
process  clause  is  to  argue  in  a  circle."65 

62  (1917)  242  U.  S.  311,  61  L.  Ed.  326,  37  S.  C.  R.  180. 

63  Powell,  op.  cit.,  3  So.  Law  Quar.  194. 

64  In  the  course  of  the  debate  the  senator  said :   "Will  you  ask  me 
whether  or  not   I  think  we  have  power  to  prohibit  the  transportation 
in  interstate  commerce  of  the  milk  of  a  cow  milked  by  a  young  lady 
eighteen  years  old?     Undoubtedly  we  have  the  power,  but  undoubtedly 
we  would  not  do  it.    We  have  the  power  to  prohibit  the  transportation 
through  interstate  commerce  of  any  article."  Cong.  Rec.,  vol.  41,  p.  1826. 

65  Hull,  op.  cit.,  31  Pol.  Sci.  Quar.  529. 


THE  NATIONAL  POLICE  POWER  477 

With  these  two  exceptions,  there  would  seem  to  be  no  dis- 
agreement among  friends  and  critics  of  the  Child  Labor  Law 
that  the  validity  of  any  congressional  prohibitions  of  interstate 
commerce  must  be  subject  to  due  process  of  law ;  and  this  view 
is  supported  by  decisions  of  the  Supreme  Court.68  The  pro- 
ponents of  the  law,  however,  deny  that  it  deprives  any  person  of 
property  or  liberty  without^due  process  of  law  and  they  advance 
the  following  arguments  in  support  of  their  view. 

At  the  outset  attention  is  called  to  the  fact  that  "the  due 
process  does  not  protect  things,  but  persons.  Goods  made  by 
child  labor  have  no  constitutional  immunities."67  Therefore  the 
law  does  not  fail  of  due  process  merely  because  the  goods  shipped 
are  harmless. 

Compliance  with  the  test  of  due  process  does  not  depend, 
therefore,  upon  the  character  of  the  goods  excluded  but  upon 
the  effect  of  that  exclusion  upon  the  rights  and  immunities  of 
those  who  are  forbidden  to  ship  the  goods.  Now  a  constitutional 
right  to  ship  in  interstate  commerce  the  products  of  factories 
employing  children  must  of  necessity  rest  upon  a  constitutional 
right  to  employ  children;  just  as  the  constitutional  right  to  ship 
lottery  tickets  in  interstate  commerce  depends  upon  the  exist- 
ence ;of  a  constitutional  right  to  conduct  or  engage  in  a  lottery 
enterprise.  The  question  then  reduces  itself  to  this:  is  there  a 
right  to  employ  children,  of  such  a  nature  that  an  interference 
with  it  constitutes  a  denial  of  due  proces  of  law?  Now  the  tests 
of  due  process  of  law  are  not  very  definite,  and  the  cases  in 
which  acts  of  Congress  have  been  invalidated  for  violation  of  the 
due  process  clause  of  the  Fifth  Amendment  are  relatively  rare  and 
throw  little  or  no  light  on  this  particular  problem.  However,  it 
has  been  held  that  the  requirement  -of  due  process  of  law  im- 
posed on  the  federal  government  by  the  Fifth  Amendment  is 
the  same  in  principle  as  the  requirement  of  due  process  of  law 
imposed  upon  the  states  by  the  Fourteenth  Amendment.68  And 
since  it  has  long  been  established  not  only  by  the  state  courts69 

66  As,  for  instance,  in  Adair  v.  United   States,  note  26,  supra.     See 
also  3  MINNESOTA  LAW  REVIEW  299. 

67  Powell,  op.  cit,  3  So.  Law  Quar.  194. 

68  Parkinson,  op.  cit.,  The  Child  Labor  Bui.  v.  IV.  pt.  2,  p.  245,  citing 
Slaughter  House  Cases,  (1872)  16  Wall.  (U.S.)  26,  19  L.  Ed.  915;  Tona- 
wanda  v.  Lyon,   (1901)   181  U.  S.  389,  45  L.  Ed.  908,  21  S.  C.  R.  609; 
Twining  v.  New  Jersey,  (1908)  211  U.  S.  78,  53  L.  Ed.  97,  29  S.  C  R.  14. 

69  See  16  R.  C.  L.  477  and  cases  cited. 


478  MINNESOTA  LAW  REVIEW 

but  also  by  the  Supreme  Court70  that  a  state  may  forbid  or 
regulate  the  employment  of  children  without  depriving  anyone 
of  liberty  or  property  without  due  process  of  law,  it  must  follow 
that  Congress  does  not  violate  due  process  by  interfering  in  a 
similar  or  analogous  manner  with  the  employment  of  children. 

It  does  not,  however,  follow  from  this  argument  that  Congress 
can  deny  the  privileges  of  interstate  commerce  to  one  who  pur- 
sues any  line  of  conduct  that  the  state  can  interfere  with  without 
a  violation  on  its  part  of  due  process  of  law.  "So  Congress 
could  not  prescribe  that  a  man  should  not  ship  goods  across  a 
state  line  in  case  he  violated  his  marriage  vows.  There  would 
be  no  nexus  between  the  infidelity  and  the  transportation.  But 
there  is  a  nexus  between  making  goods  and  shipping  them.  Evil 
in  the  making  grows  by  the  transportation  it  feeds  on.  Trans- 
portation increases  child  labor.  It  aids  an  evil  which  is  a  menace 
to  the  attainment  of  national  objects.  Congress  cannot  obliter- 
ate the  evil.  But  it  should  be  allowed  to  lessen  it  by  denying  it 
aid  from  the  enjoyment  of  the  highways  under  national  control. 
If  it  ever  should  go  further  and  seek  to  apply  its  commerce 
power  to  evils  in  no  way  dependent  upon  the  commerce  subject 
to  its  control,  then  the  Supreme  Court  may  with  wisdom  declare 
that  it  has  failed  to  make  a  legitimate  connection  between  its 
prohibition  of  transportation  and  the  circumstances  on  which 
the  prohibition  is  conditioned.  But  the  court  did  not  need  to 
annul  the  Child  Labor  Law  in  order  be  free  to  deal  with  such 
cases  if  ever  they  should  arise."71 

3.  It  Does  Not  Violate  the  Tenth  Amendment.  Those  who 
defend  the  Child  Labor  Law  regard  the  contention  that  the  law 
violates  the  Tenth  Amendment  with  less  respect  than  any  of  the 
other  arguments  directed  against  its  constitutionality.  They 
point  out  three  weaknesses  in  it  which  convince  them  of  its  lack 
of  merit.  In  the  first  place,  the  Child  Labor  Law  takes  away 
from  the  states  no  right  reserved  to  them  by  the  constitution. 
The  law  forbids  the  shipment  of  certain  commodities  across  state 
lines ;  it  does  not  forbid  the  employment  of  children.  No  state 
at  any  time  during  its  history  has  ever  had  the  power  to  compel 
any  other  state  to  admit  its  products;  and  during  the  Confed- 
eration the  states  freely  exercised  the  power  to  set  up  embargoes 

70Stun?es  &  Burn  Mfg.  Co.  v.  Beauchamp,  (1913)  231  U.  S.  320   58 
L.  Ed.  245,  34  S.  C.  R.  60. 

71  Powell,  op.  cit.,  3  So.  Law  Quar.  201. 


THE  NATIONAL  POLICE  POWER  4/9 

and  restrictions  on  goods  from  neighboring  states.  Therefore 
when  the  Child  Labor  Law  takes  from  the  individual  states  the 
right  to  impose  the  products  of  their  industry  upon  other  states 
through  the  channels  of  interstate  commerce  it  takes  away  no 
right  which  the  states  ever  had  and  therefore  no  right  which 
could  have  been  reserved  to  them  by  the  federal  constitution. 

In  the  second  place,  it  is  held  that  it  is  unsound  to  declare  the 
law  void  as  an  invasion  of  the  reserved  powers  of  the  states 
because  of  its  indirect  or  incidental  effects.  Never  before  has 
the  exercise  by  Congress  of  an  admitted  power  been  held  un- 
constitutional because  of  such  incidental  effects  upon  the  authority 
of  the  states.  Although  there  have  been  plenty  of 'instances  in 
which  congressional  authority  over  interstate  commerce  has  been 
so  exercised  as  to  impair  seriously  the  freedom  of  action  of  the 
states  in  matters  within  their  jurisdiction,  these  have  always  been 
regarded  as  the  inevitable  results  of  our  federal  form  of  govern- 
ment.72 Thus  the  Lottery  Act,  the  Pure  Food  Act,  the  Meat 
Inspection  Act,  all  in  precisely  the  same  way  discourage  the 
production  of  the  commodities  excluded  from  interstate  com- 
merce. To  invalidate  one  law  because  of  its  indirect  invasion 
of  the  power  of  the  states  and  not  to  treat  in  the  same  way  other 
acts  which  also  invade  that  power  leaves  upon  the  shoulders  of 
the  court  the  burden  of  determining  when  the  indirect  effects  of 
a  law  are  a  sufficiently  serious  interference  with  state  authority 
to  warrant  the  interposition  of  the  judicial  ban;  and  we  have 
thus  opened  up  another  fertile  field  for  the  production  of  judge- 
made  law. 

Finally,  the  argument  based  on  the  Tenth  Amendment  is 
superfluous.  "If  the  Child  Labor  Law  was  a  proper  exercise  of 
power  to  regulate  interstate  commerce,  it  was  by  the  explicit 
terms  of  the  Tenth  Amendment  not  an  exercise  of  a  power  re- 
served to  the  states.  If  it  was  not  a  proper  exercise  of  the  power 
to  regulate  interstate  commerce,  it  was  unconstitutional,  and 
nothing  more  need  be  said  about  it."73 


72  An  extreme  example   of  this   is   the  "Shreveport  Case,"  Houston, 
etc.,  Ry.  Co.  v.  United  States,   (1914)  234  U.  S.  342,  58  L.  Ed.  1341,  34 
S.  C.  R.  833,  in  which  railroads  were  compelled  to  raise  their  intrastate 
freight  rates  which  had  been  fixed  by  a  state  railroad  commission,  because 
those  rates  produced  discrimination  against  competing  shipments   in  in- 
terstate commerce  which  were  being  made  at  rates  held  reasonable  by 
the  Interstate  Commerce  Commission. 

73  Powell,  op.  cit,  So.  Law  Quar. 


480  MINNESOTA  LAW  REVIEW 

4.  The  Dissenting  Opinion  of  Mr.  Justice  Holmes.7*  The  dis- 
senting opinion  of  Mr.  Justice  Holmes  is  not  an  attempt  to  build 
up  a  constructive  argument  in  support  of  the  Child  Labor  Law, 
but  is  rather  a  pungent  criticism  of  the  reasoning  of  the  majority. 
Since  the  majority  opinion  did  not  take  up  at  all  the  due  process 
of  law  argument,  the  justice  confined  the  batteries  of  his  criti- 
cism in  general  to  a  single  concise  attack  upon  the  remaining  two 
points  of  difference. 

He  protests  most  vigorously  against  invalidating  an  exercise 
by  Congress  of  one  of  its  admitted  powers  because  of  the  col- 
lateral effect  of  such  regulation  upon  matters  reserved  to  state 
control.  "I  should  have  thought,"  declared  the  justice,  "that 
the  most  conspicuous  decisions  of  this  court  had  made  it  clear 
that  the  power  to  regulate  commerce  and  other  constitutional 
powers  could  not  be  cut  down  or  qualified  by  the  fact  that  it 
might  interfere  with  the  carrying  out  of  the  domestic  policy  of 
any  state."  He  then  proceeds  to  comment  on  some  of  these 
"conspicuous  decisions"  in  which  the  indirect  effect  upon  state 
authority  of  congressional  acts  has  been  held  quite  irrelevant 
to  the  question  of  their  validity.  Furthermore,  some  of  the  acts 
already  sustained  have  excluded  from  commerce  commodities 
intrinsically  harmless,  and  the  Supreme  Court  in  the  Hoke  case75 
has  specifically  put  itself  on  record  as  upholding  the  use  of  the 
commerce  power  for  police  purposes.  In  these  cases  "it  does 
not  matter  whether  the  supposed  evil  precedes  or  follows  the 
transportation.  It  is  enough  that  in  the  opinion  of  Congress  the 
transportation  encourages  the  evil."76 

It  is  no  longer  open  to  dispute  that  the  power  to  regulate 
commerce  includes  the  power  to  prohibit  it  in  some  cases.  Mr. 
Justice  Holmes  denies  strenuously  the  propriety  of  upholding  or 
invalidating  the  exercise  of  this  power  to  prohibit  commerce  in 
accordance  with  judicial  views  of  the  morality  or  immorality  of 
the  transactions  prohibited.  But  if  this  were  permissible,  there 
is  no  denying  that  child  labor  is  an  evil  which  ought  to  be  dealt 
with  as  readily  as  any  other.  "I  should  have  thought  that  if  we 
were  to  introduce  our  own  moral  conceptions  where  in  my 
opinion  they  do  not  belong,  this  was  pre-eminently  a  case  for 
upholding  the  exercise  of  all  its  powers  by  the  United  States." 

74  Justices  Brandeis,  McKenna,  and  Clark  concurred  in  the  dissent. 

75  Note  31,  supra. 

76  Mr.  Justice  Holmes,  dissenting  opinion,  247  U.  S.  at  p.  279. 


THE  NATIONAL  POLICE  POWER  481 

And  finally,  the  law  does  not  interfere  with  any  power  re- 
served to  the  states.  "They  may  regulate  their  internal  affairs 
and  their  domestic  commerce  as  they  like.  But  when  they  seek 
to  send  their  products  across  the  state  line  they  are  no  longer 
within  their  rights.  .  .  .  The  public  policy  of  the  United 
States  is  shaped  with  a  view  to  the  benefit  of  the  nation  as  a 
whole.  .  .  .  The  national  welfare  as  understood  by  Con- 
gress may  require  a  different  attitude  within  its  sphere  from  that 
of  some  self-seeking  state.  It  seems  to  me  entirely  constitutional 
for  Congress  to  enforce  its  understanding  by  all  the  means  at  its 
command." 

CONCLUSION 

In  the  foregoing  analysis  of  the  arguments  for  and  against  the 
constitutionality  of  the  Child  Labor  Law,  the  effort  has  been  to 
make  clear  the  exact  issues  involved  in  that  controversy.  It 
should  also  make  clear  that  the  advocates  and  opponents  of  the 
law  disagreed  not  only  upon  the  question  of  its  validity  but  also 
upon  the  question  of  just  what  the  actual  result  would  be  of  a 
decision  sustaining  the  law.  Clearly  it  would  advance  the  na- 
tional police  power  far  beyond  its  old  limits.  To  what  extent 
would  it  be  expanded?  Would  there  be  any  real  limits  upon 
that  expansion? 

The  opponents  of  the  law  have  felt  that  to  uphold  its  consti- 
tutionality would  be  to  open  wide  the  door  to  congressional  inter- 
ference in  any  and  every  matter  now  confided  to  state  control. 
In  fact,  they  have  pretty  unanimously  been  seized  with  an  irre- 
sistible impulse  to  lapse  into  reductio  ad  absurdum  and  paint  in 
the  most  lurid  colors  the  constitutional  havoc  wrought  upon 
state  authority  and  state  institutions  by  such  a  doctrine.  They 
argue  that,  if  a  man  can  be  denied  the  privileges  of  interstate 
commerce  because  he  employs  children,  he  can  be  denied  those 
privileges  because  of  any  other  line  of  conduct  which  a  majority 
in  Congress  view  with  disapproval;  the  line  which  now  exists 
between  the  police  power  of  the  state  and  the  regulatory  power 
of  Congress  would  be  obliterated,  and  the  only  difference  between 
the  authority  of  the  two  governments  to  regulate  the  conduct  of 
its  citizens  would  be  that  one  could  act  directly  and  the  other  by 
a  process  of  indirection. 


482  MINNESOTA  LAW  REVIEW 

It  seems  clear  that  some  at  least  who  have  taken  this  extreme 
view  of  the  results  of  the  Child  Labor  Law  in  expanding  the 
scope  of  the  national  police  power  have  lost  sight  of  the  fact  that 
any  exercise  of  that  power  must  be  kept  within  due  process  of 
law.  But,  even  if  this  were  not  the  case,  it  should  be  borne  in 
mind  that  a  court  which  has  expressed  its  contempt  for  those 
who  show  a  tendency  to  push  the  application  of  constitutional 
principles  to  a  "drily  logical  extreme"  is  not  apt  to  permit  itself 
to  be  browbeaten  by  the  requirements  of  absolute  consistency  into 
upholding  any  law  which  is  a  manifestly  ridiculous  or  dangerous 
application  of  even  the  most  harmless  principle. 

But  if  the  Supreme  Court  had  been  willing  to  sustain  the 
Child  Labor  Law  on  the  basis  of  the  argument  advanced  by  its 
friends  in  its  behalf,  it  is  apparent  that,  while  the  national 
police  power  would  have  been  strikingly  enlarged,  that  expansion 
would  not  have  been  unlimited  but  would  have  been  confined  to 
well  defined  boundaries.  Under  this  interpretation,  the  power 
of  Congress  to  exclude  commodities  from  the  channels  of  inter- 
state commerce  could  be  used,  not  to  strike  at  any  evil  which 
Congress  might  succeed  by  this  method  in  bringing  within  its 
reach,  but  to  strike  at  only  those  evils  which  could  be  said  to  be 
promoted  by  interstate  commerce  or  motivated  by  the  expecta- 
tion or  necessity  of  enjoying  the  privileges  of  such  commerce. 
Concretely,  those  evils  would  be  those  connected  with  the  proc- 
esses of  manufacturing  the  products  destined  for  interstate 
markets.  Congress  would  doubtless  have  gained  the  authority 
to  regulate  the  conditions  of  labor  in  any  industry  dependent  on 
interstate  commerce  for  its  markets,  and  this  of  course  includes 
every  industry  of  importance  in  the  country ;  it  is  not  clear  that 
it  would  have  gained  much  more. 

But  if  the  scope  of  the  national  police  power  under  the  com- 
merce clause  was  not  enlarged  by  the  decision  invalidating  the 
Child  Labor  Law,  neither  was  it  narrowed.  Congress  still  re- 
tains full  authority  to  deal  with  any  evil  which  threatens  to 
injure,  destroy,  or  obstruct  interstate  commerce.  There  still 
remains  the  authority  to  protect  the  national  health,  morals, 
safety,  and  general  welfare  from  such  evils  as  depend  upon  the 
physical  agency  of  interstate  commerce  facilities  for  the  trans- 
portation of  commodities  or  persons.  But  evils  which  feed  on 
interstate  commerce  only  in  the  sense  that  they  would  dwindle 


THE  NATIONAL  POLICE  POWER  483 

away  if  the  right  of  those  responsible  for  them  to  engage  in 
interstate  commerce  were  withdrawn  are  still  beyond  the  reach  of 
congressional  power  as  conferred  by  the  commerce  clause.  Con- 
gress may  exercise  a  police  power  to  protect  interstate  commerce, 
and  to  protect  the  nation  from  the  actual  misuse  of  that  com- 
merce ;  it  may  not,  however,  protect  the  nation  from  all  the  other 
equally  dangerous  and  much  more  numerous  evils  which  would 
die  of  discouragement  if  the  interstate  commerce  they  thrive  on 
were  prohibited. 


THE  NATIONAL  POLICE  POWER  247 


THE  NATIONAL  POLICE  POWER  UNDER  THE  TAX- 
ING CLAUSE  OF  THE  CONSTITUTION* 

WHEN  the  United  States  Supreme  Court  decided  in  the  sum- 
mer of  1918  that  the  Keating-Owen  Act,1  closing  the  channels 
of  interstate  commerce  to  the  products  of  mines  and  factories 
employing  child  labor,  was  an  attempt  by  Congress  to  exercise 
a  power  not  confided  to  it  by  the  constitution  and  was  therefore 
null  and  void,2  the  child  labor  exterminators,  in  Congress  and 
out,  apparently  undismayed,  girt  up  their  loins  and  sallied  forth 
on  what  one  of  them  aptly  termed  "a  quest  of  constitutionality."3 
There  seemed  to  be  no  thought  that  Congress  should  abandon  its 
efforts  to  prohibit  child  labor;  the  problem  merely  resolved  itself 
into  one  of  method.  One  method  had  failed  and  another  must 
be  found.4  Accordingly  a  rather  astonishing  variety  of  proposals 
was  brought  forward  in  the  hope  that  an  effective  and  at  the 
same  time  constitutional  federal  child  labor  law  might  be  evolved. 
Three  resolutions  were  introduced  proposing  a  child  labor  amend- 
ment to  the  national  constitution.5  Senator  Owen  demanded 
the  reenactment  of  the  Keating-Owen  Act  with  'an  added  pro- 
vision that  no  judge  should  have  the  power  to  declare  it  uncon- 
stitutional.6 Also  a  bill  embodying  the  principle  of  the  Webb- 

*This  article,  though  complete  in  itself,  is  a  development  of  the  topic 
of  National  Police  Power  under  the  Commerce  Clause,  3  MINNESOTA 
LAW  REVIEW  289,  381,  452. 

1  Aet  of  September  1,  1916,  Chap.  432,  39  Stat.  at  L.  675. 

2  Hammer  v.  Dagenhart,   (1918)  247  U.  S.  251,  62  L.  Ed.  1101,  38  S. 
C.  R.  529. 

3  Title  of  an  article  by  Raymond  G.  Fuller,  in  Child  Labor  Bulletin, 
Nov.,  1918,  Vol.  7,  207. 

4  Senator  Lodge. declared  in  the  Senate  debate  on  the  Child  Labor  Tax 
(see  infra  note  10),  "The  main  purpose  is  to  put  a  stop  to  what  seems  to 
be  a  very  great  evil  and  one  that  ought  to  be  in  some  way  put  a  stop  to. 
If  we  are  unable  to  reach  it  constitutionally  in  any  other  way,  then  I  am 
willing  to  reach  it  by  the  taxing  power,  which  the  courts  have  held  can  be 
used  constitutionally  for  such  a  purpose.     I  see  no  other  way  to  do  it." 
Cong.  Rec.,  Dec.  18,  1918,  Vol.  57,  611. 

5  House  Joint  Resolution  300,  introduced  by  Mr.  Mason   (111.),  Cong. 
Rec.,  June  11,  1918,  Vol.  56,  7652;  House  Joint  Resolution  302,  Mr.  Rogers 
(Mass.),  ibid,  7776;  House  Joint  Resolutions  304,  Mr.  Fall    (Pa.),  ibid, 
7776. 

•  Cong.  Rec..  June  6,  1918,  Vol.  56,  7418,  Sen.  bill  4671.  Debated  June 
6,  1918,  ibid,  7431,  7435. 


248  MINNESOTA  LAW  REVIEW 

Kenyon  Act  was  introduced,  forbidding  the  shipment  of  the 
products  of  child  labor  into  states  which  prohibit  the  employment 
of  children.7  Again  it  was  proposed  that  the  use  of  the  mails 
be  denied  to  the  employers  of  children.8  Still  another  bill  relied 
upon  the  war  power  as  a  basis  for  a  flat  prohibition  of  child  labor 
by  declaring  such  a  prohibition  necessary  for  "conserving  the 
man  power  of  the  nation  and  thereby  more  effectually  providing 
for  the  national  security  and  defense."9  Finally,  proposals  were 
made  to  drive  child  labor  out  of  existence  by  use  of  the  federal 
power  of  taxation ;  and  when  the  Revenue  Act  of  February  24, 
1919,  was  passed,  it  contained  provisions  placing  an  excise  tax 
of  ten  per  cent  upon  the  net  profits  of  mining  and  manufacturing 
establishments  employing  children.10 

Within  three  months  of  the  enactment  of  this  law  it  was 
declared  unconstitutional  by  a  federal  district  judge  in  North 
Carolina  on  the  ground  that  it  was  an  invasion  of  the  domain  of 

T  Sen.  bill  4762,  June  27,  1918,  by  Mr.  Pomerene.  Referred  to  Com- 
mittee on  Interstate  Commerce.  Cong.  Rec.,  Vol.  56,  8341.  See  comments 
in  Survey,  June  15.  1918,  p.  324. 

8  Sen.  bills  4732,  4760,  June  27,  1918,  by  Mr.  Kenyon.  Referred  to 
Committee  on  P.  O.  and  P.  Roads.  Cong.  Rec.,  Vol.  56,  8341. 

"House  bill  12767,  Aug.  15,  1918,  by  Mr.  Keating  (Col.),  Cong.  Rec., 
Vol.  56,  9238.  Text  of  this  bill  is  reprinted  in  Child  Labor  Bulletin,  Aug., 
1918,  Vol.  7,  98. 

10  On  June  27,  1918,  Mr.  Pomerene  introduced  a  bill  to  tax  the  employ- 
ment of  children  (S.  R.  4763)  which  was  referred  to  Committee  on  Inter- 
state Commerce,  Cong.  Rec.,  Vol.  56,  8341.  On.  Nov.  15,  1918,  he  intro- 
duced a  similar  measure  drafted  in  collaboration  with  Senators  Kenyon 
and  Lenroot  as  an  amendment  to  the  general  revenue  bill  (H.  R.  12863). 
This  amendment  was  finally  enacted. 

The  pertinent  part  of  the  act  as  passed  is  the  first  section,  Act  of  Feb. 
24,  1919,  40  Stat.  at  L.  1138.  It  reads  as  follows:  "Every person  (other than 
a  bona  fide  boy*'  or  girls'  canning  club  recognized  by  the  Agricultural 
Department  of  a  State  and  of  the  United  States)  operating  (a)  any  mine 
or  quarry  situated  in  the  United  States  in  which  children  under  the  age 
of  sixteen  years  have  been  employed  or  permitted  to  work  during  any 
portion  of  the  taxable  year ;  or  (b)  any  mill,  cannery,  workshop,  factory, 
or  manufacturing  establishment  situated  in  the  United  States  in  which 
children  under  the  age  of  fourteen  years  have  been  employed  or  per- 
mitted to  work,  or  children  between  the  ages  of  fourteen  and  sixteen 
have  been  employed  or  permitted  to  work  more  than  eight  hours  in  any 
day  or  more  than  six  days  in  any  week,  or  after  the  hour  of  seven  o'clock 
post  meridian,  or  before  the  hour  of  six  o'clock  ante  meridian,  during  any 
portion  of  the  taxable  year,  shall  pay  for  each  taxable  year,  in  addition 
to  all  other  taxes  imposed  by  law,  an  excise  tax  equivalent  to  10  per 
centum  of  the  entire  net  profits  received  or  accrued  for  such  year  from 
the  sale  or  disposition  of  the  product  of  such  mine,  quarry,  mill,  cannery, 
workshop,  factory  or  manufacturing  establishment." 

Other  proposals  for  destroying  child  labor  by  taxation  were  made  in 
Congress.  Two  bills  (H.  R.  12705,  13087)  introduced  by  Mr.  Green  (la.) 
and  Mr.  Card  (Ohk>)  provided  for  the  taxation  of  articles  of  interstate 
commerce  in  the  manufacture  of  which  child  labor  is  employed.  Cong. 
Rec.,  Vol.  56,  9051,  11310.  It  was  proposed  by  Mr.  Mason  (111.)  to  levy 


THE  NATIONAL  POLICE  POWER  249 

state  authority.11  At  the  time  of  the  writing  of  this  article  an 
appeal  from  this  decision  is  pending  before  the  Supreme  Court 
of  the  United  States. 

It  would  seem  that  in  no  case  could  the  question  be  more 
squarely  raised  whether  there  are  any  constitutional  limitations 
upon  the  purposes  for  which  Congress  may  use  its  power  to  tax. 
The  friends  of  this  law  do  not  claim  that  it  was  designed  for  the 
purpose  of  raising  revenue,  or  for  any  other  purpose  than  the 
destruction  of  child  labor.12  If  it  should  be  held  that  this  is  a 
constitutional  use  of  the  taxing  power  it  follows  that  there  is 
stored  up  in  the  power  to  tax  a  most  substantial  fund  of  con- 
gressional authority  to  deal  with  social  and  economic  problems, 
a  police  power  more  comprehensive  and  far-reaching  in  scope 
than  can  be  derived  from  any  other  grant  of  power  to  Congress.13 
It  is  the  purpose  of  this  article  to  examine  the  nature  of  such 
national  police  power  as  may  be  derived  from  the  power  to  tax 
and  to  determine  what  are  the  limitations,  if  there  be  any,  to 
which  that  power  is  subject. 

THE  CLAUSE  GRANTING  THE  POWER  TO  TAX 

Congressional  authority  to  tax  is  granted  in  the  following 
words  of  the  federal  constitution:  'The  Congress  shall  have 
Power  (1)  To  lay  and  collect  Taxes,  Duties,  Imposts  and  Ex- 
cises, to  pay  the  Debts  and  provide  for  the  common  Defense 
and  general  Welfare  of  the  United  States."14  For  what  seems 
at  first  glance  to  be  a  perfectly  straightforward  and  unambig- 
uous statement,  this  brief  sentence  has  given  rise  to  a  surprising 
number  of  constitutional  controversies  of  the  very  first  magni- 
tude. These  disputes  have  related  to  two  entirely  separate 

a  tax  of  two  dollars  per  day  on  all  who  employ  children.  Cong.  Rec., 
Vol.  56,  Appendix,  461. 

11  May  2,  1919.     The  decision  was  handed  down  by  Judge  James  E. 
Boyd,  who  rendered  the  district  court  decision  in  Dagenhart  v.  Hammer, 
invalidating  the  Keating-Owen  Act.    No  opinion  was  written  and  the  facts 
set  forth  above  are  based  on  press  reports.    See  New  York  Times,  May 
2,  1919. 

12  With  the  possible  exception  of  its  author,  Senator  Pomerene,  who 
insisted  that  the  purpose  of  its  enactment  was  two-fold,  to  raise  revenue 
and  to  destroy  child  labor.    He  expressed  the  belief  that  it  would  produce 
some  revenue.    Cong.  Rec.,  Dec.  18,  1918,  Vol.  57,  613. 

13  See  articles  by  the  writer  on  National  Police  Power  under  the  Com- 
merce Clause   of   the   Constitution,    (1919)    3   MINNESOTA   LAW  REVIEW, 
289,  381,  452;  Judge  Charles  M.  Hough,  Covert  Legislation  and  the  Con- 
stitution,   (1917)    30  Harvard   Law   Rev.  801;   Paul   Fuller,   Is  There  a 
National  Police  Power?  (1904)  4  Col.  Law  Rev.  563. 

"Art.  I,  sec.  8,  cl.  1. 


250  MINNESOTA  LAW  REVIEW 

aspects  of  the  taxing  power.15  In  the  first  place,  there  has  been 
bitter  disagreement  as  to  the  purposes  for  which  Congress  is 
authorized  to  raise  revenue.  In  other  words,  what  may  Con- 
gress legitimately  do  with  the  money  raised  by  taxation  ?  In 
respect  to  this  question,  which  is  not  the  one  under  considera- 
tion, we  may  merely  note  in  passing  that  the  following  principles 
are  now  settled :  First,  the  clause,  "to  pay  the  debts  and  provide 
for  the  common  defense  and  general  welfare  of  the  United 
States,"  is  not  a  separate  grant  of  general  legislative  power,  but 
is  a  statement  of  limitation  indicating  the  purposes  for  which 
Congress  may  use  the  power  to  "lay  and  collect  taxes,  duties, 
imposts  and  excises."  In  short,  Congress  may  lay  and  collect 
taxes  in  order  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare.16  Second,  Congress  is  not  limited 
in  the  purposes  for  which  it  may  spend  money  raised  by  taxa- 
tion to  such  purposes  as  are  covered  by  the  legislative  powers 
delegated  to  Congress  by  the  constitution.  It  may  spend  money 
not  only  to  aid  in  the  exercise  of  those  delegated  powers,  but 
also  for  the  more  comprehensive  and  general  objects  of  "pro- 
viding for  the  common  defense  and  general  welfare."17 

15  Story,  Commentaries  on  the  Constitution,  I,  Sec.  958. 

16  No  one  has  expressed  this  more  clearly  than  Jefferson  in  his  opinion 
on  the  power  of  Congress  to  establish  the  Bank  of  the  United  States : 
"To  lay  taxes  to  provide  for  the  general  welfare  of  the  United  States, 
that  is  to  say,  'to  levy  taxes  for  the  purpose  of  providing  for  the  general 
welfare.'    For  the  laying  of  taxes  is  the  power,  and  the  general  welfare 
the  purpose,  for  which  the  power  is  to  be  exercised.    Congress  are  not  to 
lay  taxes  ad  libitum,  for  any  purpose  they  please ;  but  only  to  pay  the 
debts,  or  provide  for  the  welfare  of  the  Union.     In  like  manner  they  are 
not  to  do  anything  they  please  to  provide  for  the  general  welfare,  but 
only  to  lay  taxes  for  that  purpose.    To  consider  the  latter  phrase,  not  as 
describing  the  purpose  of  the  first,  but  as  giving  a  distinct  and  independent 
power  to  do  any  act  they  please,  which  might  be  for  the  good  of  the 
Union,  would  render  all  the  preceding  and  subsequent  enumerations  of 
power  completely 'useless"    Jefferson's  Correspondence,  Vol.  4,  524,   525. 
On  the  same  point  see  Story,  op.  cit.  Sees.  907-930;  Miller  on  the  Con- 
stitution, 229 ';  Hare'  American  Constitutional  Law,  I,  241 ;  Watson,  Con- 
stitution. I,   390;   Black.   Constitutional  Law,  207;    Tucker,   Constitution, 
I,  470 ;  Federalist,  No.  41. 

Compare  the  opposite  view  of  Chancellor  Kent :  "At  present  it  will  be 
sufficient  to  observe,  generally,  that  Congress  are  authorized  to  provide 
for 'the  common  defense  and  general  welfare;  and  for  that  purpose, 
among  other  express  grants,  they  are  authorized  to  lay  and  collect  taxes, 
etc.  .  .  ."  Commentaries,  13th  Ed.,  I,  259. 

17 The  classic  argument  in  support  of  this  position  is. that  of  President 
Monroe  in  his  message  accompanying  his  veto  of  the  Cumberland  Road 
Bill.  Richardson :  Messages  and  Papers  of  the  Presidents,  II,  164-167 ; 
Hamilton's  .Report  on  Manufactures,  Dec.  5,  1791.  Works,  Lodge  Ed  Vol. 
4,  151.  See  also  Story,  op.  cit.  Sees.  975-991 ;  Willoughby,  op.  cit.,  I,  588. 
For  opposite  view  see  Tucker,  op.  cit.,  I,  475. 


THE  NATIONAL  POLICE  POWER  251 

The  second  group  of  controversies  over  the  meaning  of  the 
taxing  clause  of  the  constitution  has  dealt,  not  with  the  question 
of  the  purposes  for  which  revenue  may  legitimately  be  raised  by 
taxation,  but  with  the  question  whether  or  not  Congress  may 
use  the  power  to  tax  for  purposes  which  do  not  include  the  raising 
of  any  revenue  at  all,  or  include  it  only  incidentally.  For  in- 
stance, may  Congress  tax  solely  in  order  to  promote  industry, 
or  to  drive  out  of  existence  practices  or  commodities  injurious 
to  the  national  welfare?  It  is  clear  that  the  scope  and  nature 
of  any  police  power  which  Congress  may  enjoy  under  the  taxing 
clause  will  depend  upon  the  extent  to  which  it  may  use  its  power 
to  tax  for  purposes  other  than  revenue. 

The  question  of  the  purposes  for  which  Congress  may  use  the 
power  to  tax  has  been  answered  with  different  degrees  of  con- 
servatism. On  the  one  hand  are  those  who  believe  that  this 
power  may  be  legitimately  used  only  for  the  raising  of  revenue. 
Midway,  a  more  numerous  group  has  urged  that  Congress  may 
properly  tax  for  revenue  and  in  addition  to  accomplish  or  pro- 
mote any  other  legislative  object  within  the  enumerated  powers 
of  Congress.  Finally,  the  friends  of  the  new  child  Jabor  tax 
and  measures  like  it  allege  that  Congress  may  levy  taxes  for  the 
purpose  of  regulating  or  controlling  indirectly  problems  clearly 
outside  of  its  delegated  legislative  authority,  provided  that  such 
taxation  has  for  its  object  providing  for  the  common  defense 
and  general  welfare  of  the  nation.  An  examination  of  the  merits 
of  these  three  views  in  the  light  of  the  arguments  advanced  in 
their  support  will  help  materially  in  determining  whether  or  not 
there  is  a  national  police  power  properly  deducible  from  the  con- 
gressional power  to  tax;  and  if  there  is  such  a  police  power, 
what,  if  any,  are  its  limits. 

TAXATION  FOR  REVENUE  ONLY 

The  proposition  that  Congress  'may  use  its  grant  of  taxing 
power  only  to  raise  revenue  is  ancient  and  familiar  doctrine.  It 
has  served  as  an  argument  for  over  a  hundred  years  to  those 
who.  have  denied  the  constitutionality  of  the  protective  tariff.18 
To  that  end  it  was  vigorously  urged  by  Calhoun  and  his  South 

18  For  analysis  of  arguments  for  and  against  the  constitutionality  of 
protective  tariffs,  see  passim  Stanwood,  Tariff  Controversies  in  the  United 
States  in  the  Nineteenth  Century.  See  also  arguments  on  this  point  in 
Elliott's  Debates,  Vol.  IV.  Of  course  this  is  not  the  only  argument 
urged  against  the  validity  of  such  tariffs. 


252  MINNESOTA  LAW  REVIEW 

Carolina  adherents  in  1829  during  the  critical  period  of  the 
nullification  controversy;19  and  it  stood  as  a  solemn  pronuncia- 
mento  in  the  party  platform  on  which  President  Wilson  was 
elected  in  1912.20 

It  must  not  be  assumed,  however,  that  this  view  of  the  fed- 
eral taxing  power  is  the  sole  property  of  the  free  trader.  It 
is  not  even  incompatible  with  a  belief  in  the  constitutional  pro- 
priety of  protection.  Nor  does  it  place  one  in  the  position  of 
maintaining  with  an  unyielding  literalness  that  Congress  may, 
under  no  circumstances,  impose  a  money  exaction  or  tax  for 
a  purpose  other  than  revenue.  The  present  day  advocates  of 
this  theory  usually  recognize  that  Congress  may  levy  a  tax  to 
make  effective  some  other  power  delegated  to  Congress  by  the 
constitution,  such  as  the  power  to  regulate  commerce  or  to 
control  the  currency.  They  insist,  however,  that  in  such  cases 
Congress  has  exercised  not  its  delegated  taxing  power  but  its 
commerce  power  or  its  currency  power.  In  other  words,  the 
power  of  taxation  granted  by  article  I,  section  8  of  the  constitu- 
tion is  definitely  limited  to  the  laying  of  taxes  for  revenue  only : 
but  in  addition  to  this  expressly  delegated  and  definitely  limited 
power,  there  is  derived  from  the  other  grants  of  congressional 
authority  an  implied  power  to  levy  money  exactions  which  may 
be  called  taxes,  so  that  a  tax  is  constitutional  which  furthers  any 
object  within  the  scope  of  the  delegated  powers  of  Congress 
even  though  it  is  not  levied  by  virtue  of  the  taxing  power  spe- 
cifically granted  in  article  1,  section  8.  To  overlook  this  impor- 
tant distinction  puts  the  adherent  of  the  "revenue  only"  theory 
in  an  entirely  false  position. 

This  view  that  the  power  of  taxation  granted  to  Congress  may 
constitutionally  be  used  only  for  the  purpose  of  raising  revenue 
is  supported  by  three  main  arguments  which  may  be  briefly 
reviewed.21 

1.  In  its  commonly  accepted  meaning  as  well  as  by  legal 
definition,  the  term  "taxation"  is  confined  to  the  power  of  gov- 

«  Works,  VI,  1-59. 

20  The  Democratic  Platform  in  1912  contained  the  following  declara- 
tion: "We  declare  it  to  be  a  fundamental  principle  of  the  Democratic 
Party  that  the  Federal  Government  under  the  Constitution  has  no  right 
to  impose  or  collect  tariff  duties  except  for  the  purposes  of  revenue.  .  .  ." 
The  Democratic  Platform  in  1892  contained  a  practically  identical  state- 
ment 

81  For  an  excellent  presentation  of  this  whole  theory  of  federal  tax- 
ation, see  the  valuable  article  by  J.  B.  Waite,  (1908)  6  Mich.  Law  Rev.  277. 


THE  NATIONAL  POLICE  POWER  253 

ernments  to  raise  revenue.  All  the  English  dictionaries  concur 
in  regarding  the  purpose  of  securing  money  as  an  inherent 
attribute  of  a  tax.22  The  raising  of  revenue  has  been  commonly 
recognized  as  the  sine  qua  non  of  the  taxing  power.23  This  gen- 
eral impression  of  the  layman  and  the  lexicographer  has  been 
confirmed  with  definiteness  and  precision  in  the  law,  which  has 
recognized  and  emphasized  the  distinction  between  money  ex- 
actions for  revenue  purposes  and  money  exactions  imposed  for 
purposes  of  regulation  or  destruction.  Charges  of  the  first  class 
are  based  on  the  taxing  power ;  those  of  the  second  class  upon  the 
police  power.  Commentators24  and  courts25  have  again  and  again 
insisted  upon  the  observance  of  this  classification.  The  state  gov- 
ernments possess,  of  course,  a  general  police  power  for  the  pro- 
tection of  public  health,  safety,  morals  and  welfare.  As  a  neces- 
sary and  reasonable  means  of  exercising  this  police  power  the 
state  may  levy  what,  for  want  of  a  better  term,  may  be  called 
taxes,  which  are  prohibitive  or  repressive  or  regulatory  in  purpose 
and  effect.  In  the  legal  and  constitutional  sense  these  taxes  are 
to  be  regarded  as  police  regulations,  and  not  as  exertions  of  the 
power  of  the  state  to  tax.  To  prove  this  it  is  merely  necessary  to 
point  out  that  these  so-called  "taxes"  have  been  subjected  to  all  the 
constitutional  limitations  resting  upon  the  police  power  and  when 
they  have  been  imposed  in  a  manner  or  for  a  purpose  which  can- 
not be  justified  under  the  police  power,  the  courts  have  not.hesi- 

22  Webster  defines  a  tax  as  "a  rate  or  sum  of  money  assessed  on  the 
person  or  property  of  a  citizen  by  the  government  for  the  use  of  the 
nation  or  state." 

23  While  admitting  that  the  purpose  to   raise   revenue   is   a  common 
attribute  of  the  taxing  power,  there  are  those  who  deny  that  it  is  an 
essential  attribute.    See  infra  261,  265. 

24  "License    fees,    occupation    taxes,    inspection    fees,    and    other    like 
exactions,  which  are  not  imposed  for  the  purpose  of  raising  revenue,  but 
for  the  proper  regulation  of  matters  deemed  essential  to  the  public  safety, 
health,  or  welfare,  are  not  'taxes'  in  the  ordinary  and  proper  sense  of 
that  term,  and  are  not  governed  by  the  constitutional  rules  and  maxims 
applicable  to  taxation,  but  by  those  which  define  and  limit  the  exercise  of 
the  police  power."    Black,  Constitutional  Law,  3d  Ed.,  467;  Cooley,  Con- 
stitutional Limitations,  7th  Ed.  283,  n.  1,  709,  n.  1,  713;  Cooley  on  Taxa- 
tion, 3d  Ed.  II,  1125;  Freund,  Police  Power,  Sec.  25;  McClain,  Consti- 
tutional Law  in  the  U.  S.,  133;  27  Amer.  &  Eng.  Ency.  of  Law  &  Proc., 
578;  37  "Cyc."  707. 

"Gundling  v.  Chicago,  (1900)  177  U.  S.  183,  189,  20  S.  C  R.  633,  44 
L.  Ed.  725;  Phillips  v.  Mobile,  (1908)  208  U.  S.  472,  478,  28  S.  C.  R.  370, 
52  L.  Ed.  578;  Reymann  Brewing  Co.  v.  Brister,  (1900)  179  U.  S.  445, 
45  L.  Ed.  269,  21  S.  C.  R.  201 ;  Pabst  Brewing  Co.  v  Crenshaw,  (1904) 
198  U.  S.  17,  49  L.  Ed.  925,  25  S.  C.  R.  552;  Tanner  v.  Little,  (1916)  240 
U.  S.  369,  60  L.  Ed.  691,  36  S.  C.  R.  379. 


254  MINNESOTA  LAW  REVIEW 

tated  to  declare  them  unconstitutional.26  If,  therefore,  it  should 
be  admitted  that  the  power  of  taxation  belonging  to  Congress  is 
exactly  the  same  in  nature  and  scope  as  that  which  the  states  en- 
joy, a  proposition  which  has  been  vigorously  urged,27  it  by  no 
means  follows  that  that  power  affords  any  basis  for  the  exercise 
of  a  general  federal  police  authority  by  means  of  regulatory  and 
prohibitive  taxation.  When  the  state  lays  a  tax  for  police 
purposes,  it  is  exercising  one  of  its  admitted  powrers,  the  police 
power.  No  one  will  deny  that  Congress,  also,  may  lay  taxes  as  a 
means  of  carrying  out  its  own  granted  powers.28  But  the  use  by 
the  state  of  the  power  to  lay  taxes  in  aid  of  an  admitted  state 
power  can  furnish  no  authority  for  the  exercise  by  Congress  of 
the  power  to  levy  taxes  in  aid  of  powers  clearly  not  granted  to 
the  national  government. 

To  regard  the  power  of  taxation  as  in  its  very  nature  limited 
to  purposes  of  revenue  is  not  to  deny  or  discount  the  truth  of 
Marshall's  .famous  dictum,  "the  power  to  tax  is  the  power  to  de- 
stroy."29 The  two  propositions  are  entirely  compatible.  This  oft- 
quoted  maxim,  instead  of  being  regarded  as  a  blanket  authori- 
zatipn  of  the  unrestrained  use  of  the  taxing  power  for  any  and 
all  purposes  irrespective  of  revenue,  is  more  reasonably  con- 
strued as  an  epigrammatic  statement  of  the  political  and  eco- 
nomic axiom  that  since  the  financial  needs  of  a  state  or  nation 
may  outrun  any  human  calculation,  so  the  power  to  meet  those 
needs  by  taxation  must  not  be  limited  even  though  the  taxes 
become  burdensome  or  confiscatory.30  To  say  that  "the  power 

2«  State  v.  Ashbrook,  (1899)  154  Mo.  375,  55  S.  W.  627,  48  L.  R.  A. 
265,  77  A.  S.  R.  765;  Sperry  and  Hutchinson  v.  Owensboro,  (1912)  151 
Ky.  389,  151  S.  W.  932;  Little  v.  Tanner,  (1913)  208  Fed.  605  (over- 
ruled in  240  U.  S.  369  on  other  grounds).  Earlier  cases  are  cited  by 
Cooley,  Taxation,  II,  1140. 

27  See  infra,  p.  267. 

28  See  infra,  p.  261. 

29McCulloch  v.  Maryland,  (1819)  4  Wheat.  (U.S.)  :316,  431,  4  L.  Ed. 
579 ;  Weston  v.  City  Council  of  Charleston,  (1829)  2  Pet.  449,  7  L.  Ed. 
481.  It  should  be  noted  that  this  statement  is  in  reality  obiter  dictum. 
What  Marshall  was  proving  was  that  a  state  could  levy  no  tax  whatever 
on  an  instrumentality  of  the  federal  government  even  though  the  tax 
was  neither  burdensome  nor  destructive.  See  article  by  T.  R.  Powell, 
Indirect  Encroachment  on  Federal  Authority  by  the  Taxing  Powers  of 
the  States,  (1918)  31  Harvard  Law.  Rev.  321. 

30  "The  sense  of  the  opinion  is  that,  as  a  sovereign  state,  governments 
may  be  pressed  for  money,  each  may  take  from  its  people  a  portion  of 
their  possessions ;  that  this  right  may  be  exercised  again  and  again  until 
the  whole  of  the  property  has  been  exhausted :  In  this  sense  there  is  a  like 
right  in  the  federal  government  to  destroy."  Waite,  op.  cit.,  6  Mich  Law 
Rev.  292. 


THE  NATIONAL  POLICE  POWER 

to  tax  is  the  power  to  destroy"  is  to  describe  not  the  purposes 
for  which  the  taxing  power  may  be  used  but  the  degree  of  vigor 
with  which  the  power  may  be  employed  in  order  to  raise  rev- 
nue.31 

2.  It  is  urged,  in  the  second  place,  that  the  framers  of  the 
federal  constitution  intended  to  confer  upon  Congress  the  power 
to  tax  only  for  the  purpose  of  raising  revenue.32  It  is  true  that 
the  clause  granting  this  power  contains  language  susceptible  of 
a  more  liberal  construction.  It  authorizes  the  levying  of  taxes 
"to  pay  the  debts  and  provide  for  the  common  defense  and  gen- 
eral welfare  of  the  United  States."  The  power  described  by  these 
words,  however,  is  the  power  to  tax  for  the  purpose  of  securing 
the  necessary  money  with  which  to  pay  the  public  debts  and  pro- 
vide for  the  common  defense  and  general  welfare.  In  other 
words,  "to  provide  for  the  common  defense  and  general  wel- 
fare" is  a  statement  of  the  objects  for  which  money  raised  by 
taxation  may  be  spent  rather  than  a  statement  of  the  objects  for 
which  the  power  to  tax  may  be  used  irrespective  of  revenue.  It 
is  urged  that  such  meagre  evidence  as  is  available  regarding  the 
meaning  attached  to  this  clause  by  those  who  framed  it33  and  by 

31  This  view  finds  support  in  Marshall's  further  comment  on  the  doc- 
trine in  the  same  case :   "The  people  of  a  state,  therefore,  give,  to  their 
government  a  right  of  taxing  themselves  and  their  property,  and  as  the 
exigencies  of  government  cannot  be  limited,  they  prescribe  no  limits  to 
the  exercise  of  this  right,  resting  confidently  on  the  interest  of  the  legis- 
lator, and  on  the  influence  of  the  constituents  over  their  representatives, 
to  guard  them  against  its  abuse."    4  Wheat.  (U.  S.)  316,  428. 

32  Waite,  op.  cit.,  6  Mich.  Law  Rev.  284 ;  Bruce,  Interstate  Commerce 
and  Child  Labor,    (1919)    3   MINNESOTA  LAW   REVIEW   101;   Tucker,  o<p. 
cit,  I,  478. 

33  The  problem  of  the  purposes  for  which  Congress  was  to  be  author- 
ized to  lay  taxes  evoked  little  discussion  in  the  Convention  of  1787.     The 
Virginia  Plan  as  introduced  by  Randolph  on  May  29  contained  no  sep- 
arate grant   of   the   taxing   power   to    Congress   but   provided   "that  the 
National  Legislature  ought  to  be  empowered  to -enjoy  the  legislative  rights 
vested  in  Congress  by  the  Con  federation, 'and  moreover  to  legislate  in  all 
cases  to  which  the  separate  states  are  incompetent,  etc.  ..."     Farrand, 
Records  of  the  Federal  Convention,  I,  21. 

Section  2  of  the  New  Jersey  Plan  introduced  by1  Patterson  on  June 
15  provided  that  Congress  "be  authorized  to  pass  acts  for  raising  a  reve- 
nue, by  levying  a  duty  or  duties  on  all  'goods  or  merchandise  of  foreign 
growth  or  manufacture,  imported  into-  any  part  of  the  United  States,  by 
stamps  on  paper,  vellum  or  parchment,  and  by  a  postage  on  all  letters 
or  packages  passing  through  the  general  Postoffice,  to  be  applied  to  such 
federal  purposes  as  they  shall  deem  proper  and  expedient."  Ibid,  I,  243. 

The  plan  for  a  new  constitution  proposed  by  Charles  Pinckney  on  May 
29.  provided  in  Art.  IV  that  "The  legislature  of  the  United  States  shall 
have  the  power  to  lay  and  collect  taxes,  duties,  imposts  and  excises." 
Ibid,  III.  595.  This  was  the  form  in  which  the  clause  was  reported  by 
the  Committee  of  Detail  on  Aug.  6,  Ibid,  II,  181.  A  •  further  report 
from  the  same  committee  on  Aug.  22  added  to  the  clause  as  quoted  the 


256  MINNESOTA  LAW  REVIEW 

those  who  discussed  it  while  ratification  of  the  constitution  was 
pending34  tends  to  support  the  view  here  urged.  The  clause  was 
placed  in  the  constitution  in  order  to  remedy  that  serious  defect  of 
the  articles  of  confederation  arising  from  the  inability  of  Congress 
to  raise  revenue  directly.  The  new  government  must  enjoy  this 
power  to  raise  revenue,  and  these  were  the  words  in  which  that 
power  was  conferred.35  That  the  framers  did  not  intend  to  give 
Congress  a  general  police  power  to  be  exercised  by  means  of 
destructive  or  regulatory  taxation  is  evidenced  by  two  more  def- 
inite considerations.  First,  the  fundamental  principle  on  which  the 
new  national  government  was  to  rest  was  that  of  enumerated 
powers.  Its  founders  desired  it  to  deal  with  a  definitely  limited 
group  of  subjects  and  no  others.  They  cannot  therefore  reason- 
ably be  presumed  to  have  intended  to  confer  upon  Congress,  under 
the  guise  of  the  power  to  lay  taxes,  the  power  to  deal  with  any 
problem  of  social  or  economic  policy  which  might  be  indirectly 
affected  or  controlled  by  an  ingenious  use  of  the  taxing  power. 
Had  they  so  intended,  they  would  have  swept  away  by  this  one 
specific  grant  of  power  most  of  those  limitations  upon  the  scope 
of  federal  authority  which  it  was  the  purpose  of  the  other  spe- 

words,  "for  the  payment  of  the  debts  and  necessary  expenses  of  the 
United  States."  Ibid,  II,  366.  Among  the  records  of  the  Committee  of 
Detail  was  found  a  proposal  in  Randolph's  writing  that  Congress  should 
have  power  "To  raise  money  by  taxation,  unlimited  as  to  sum,  for  the 
past  or  future  debts  and  necessities  of  the  union."  Ibid,  II,  142. 

On  Aug.  25  a  motion  was  lost  to  add  to  the  clause  granting  Congress 
the  power  to  tax  the  clause  "for  the  payment  of  said  debts  and  for  the 
defraying  the  expenses  that  shall  be  incurred  for  the  common  defense 
and  general  welfare."  Ibid,  II,  408. 

34  The  Federalist  discusses  the  federal  taxing  power  at  length.     See 
Nos.  30-36  inc.    It  nowhere  suggests  that  the  power  could  be  used  for 
purposes  other  than  revenue. 

Sherman  and  Ellsworth  in  transmitting  a  copy  of  the  new  constitution 
to  the  governor  of  Connecticut,  Sept.  26,  1787,  wrote:  "The  objects  for 
which  Congress  may  apply  monies,  are  the  same  mentioned  in  the  eighth 
article  of  the  confederation,  viz.  for  the  common  defense  and  general  wel- 
fare, and  for  the  payment  of  the  debts  incurred  for  those  purposes." 
Farrand,  op.  cit.,  Ill,  99. 

McHenry,  member  of  the  Convention  of  1787  from  Maryland,  speaking 
on  Nov.  29  before  the  Maryland  House  of  Delegates,  declared):  "The 
power  given  to  Congress  to  lay  taxes  contains  nothing  more  than  is  com- 
prehended in  the  spirit  of  the  eighth  article  of  the  Confederation."  Ibid, 
III,  149. 

35  Art.  VIII  of  the  Articles  of  Confederation  had  provided  that  "All 
charges  of  war,  and  all  other  expenses  that  shall  be  incurred  for  the 
common   cause  or  general   welfare.    .    .    .   shall  be  defrayed  out  of  a 
common  treasury,  which  shall  be  supplied  by  the  several  States,  in  pro- 
portion to  the  value  of  all  such,  land  within  each  State,  etc.    .    .    ."     It 
was  the  method  of  raising  money,  rather  than  the  purposes  of  taxation 
which  the  framers  of  the  Constitution  sought  to  change. 


THE  NATIONAL  POLICE  POWER  257 

cific  grants  of  power  to  build  up.38  And  secondly,  had  the  fram- 
ers  of  the  constitution  desired  to  have  Congress  enjoy' that  gen- 
erous police  power  which  it  has  been  urged  it  may  exercise 
through  the  medium  of  taxation,  is  it  probable  that  they  would 
have  limited  Congress  in 'the  exercise  of  that  police  power  to 
the  inconvenient  and  indirect  agency  of  taxation?  Would  they 
not  rather  have  allowed  a  reasonable  choice  of  method  instead 
of  saying,  in  effect,  "you  may  exercise  a  police  power,  provided 
only  you  do  it  under  the  guise  of  taxation  ?"87 

'3.  Finally,  in  every  case  in  which  the  Supreme  Court  of  the 
United  States  has  been  willing  to  recognize  that  Congress  has 
levied  taxes  for  purposes  other  than  revenue,  it  has  looked  upon 
these  taxes  not  as  exercises  by  Congress  of  its  granted  power  to 
tax,  but  as  means  employed  for  carrying  out  other  delegated 
congressional  powers.  And  this  view  has  been  shared  by  dis- 
tinguished legal  commentators.  In  other  words,  the  cases  com- 
monly cited  to  prove  that  the  delegated  power  of  taxation  may 
be  used  for  purposes  of  regulation  and  destruction  prove  nothing 
more  in  fact  than  that  the  power  of  Congress  to  lay  taxes  may 
be  an  implied  power  derived  from  other  congressional  powers,  or 
that  Congress  may  lay  taxes  as  a  necessary  and  proper  means  of 
carrying  out  its  other  granted  powers. 

This  is,  in  the  first  place,  the  constitutional  justification  of 
the  prohibitive  tariff.  While  there  is  no  decision  of  the  Supreme 
Court  squarely  upon  this  point,  the  weight  of  authority  leans  to 
the  view  that  a  prohibitive  tariff  is  not  an  exercise  of  the  taxing 
power  at  all,  but  should  rather  be  classified  as  a  regulation  of 
commerce.38  In  cases  where  a  tariff  is  levied  not  only  to  raise 

36  Tucker  writes :    "It   is   surprising  how  this   sophistical   device  has 
been  upheld  by  learned  commentators,  for  it  is  obvious  that,  by  such  con- 
struction of  the  Constitution,  Congress  may  range  with  no  limit  but  its 
discretion  through  the  realms  of  reserved  and  ungranted  powers  by  means 
of  a  clause  to  tax  ad  libitum  and  appropriate  at  will  the  money  of  the 
people  to  the  promotion  of  anything  through  other  agencies  than  its  own 
and  to  the  accomplishment  of  anything  it  may  deem  to  be  for  the  com- 
mon  defense  and  general  welfare ;   for  this,  in  effect,  is  worse  than  if 
the   words    'to   provide   for   the   common   defense   and   general   welfare' 
were  held  to  grant  the  unlimited  power  claimed,  as  it  incites  to  profuse 
expenditure  and  excessive  taxation  as  the  only  avenue  to  the  unlimited 
usurpation  of  ungranted  powers."     Op.  cit.,  I,  484.     See  also  Bruce,  op. 
cit.,  3  MINNESOTA  LAW  REVIEW   101-103. 

37  Waite,  op.  cit.,  6  Mich.  Law  Review  285. 

38  The  authority  most  frequently  cited  is  Cooley  who  writes :  "Consti- 
tutionally a  tax  can  have  no  other  basis  than  the  raising  of  a  revenue  for 
public  purposes,  and  whatever  governmental  exaction  has  not  this  basis  is 
tyrannical  and  unlawful.     A  tax  on  imports,  therefore,  the  purpose  of 
which  is,  not  to  raise  a  revenue,  but  to  discourage  and  indirectly  prohibit 


258  MINNESOTA  LAW  REVIEW 

revenue  but  also  for  the  protection  of  home  industry,  it  may  be 
regarded  as  an  exercise  of  both  the  taxing  and  the  commerce 
powers.39  Even  Story,  who  repudiates  the  doctrine  of  taxation 
for  revenue  only,  regards  the  protective  tariff  as  a  means  of 
regulating  foreign  commerce;40  and  his  view  would  probably  be 
followed  by  any  court  before  which  the  issue  could  be  raised. 

In  the  second  place,  Congress  has  laid  destructive  taxes  as  a 
means  of  regulating  the  currency.  In  1866,  shortly  after  the  es- 
tablishment of  the  national  banking  system,  Congress  laid  a  pro- 
hibitive tax  of  ten  per  cent  upon  state  bank  notes  in  order  to  pro- 
tect the  notes  of  the  new  national  banks  from  their  competition.41 
The  Supreme  Court  of  the  United  States  upheld  the  constitu- 
tionality of  this  tax  in  the  case  of  Veasie  Bank  vs.  Fenno,  de- 
cided in  1869.42  Counsel  for  the  bank  urged  upon  the  court  that 
the  tax  was  invalid  because  it  was  so  excessive  as  to  indicate  a 
purpose  on  the  part  of  Congress  to  destroy  the  thing  taxed  rather 
than  to  raise  revenue.  The  court  replied : 

"The  first  answer  to  this  is  that  the  judicial  cannot  prescribe 
to  the  legislative  department  of  the  government  limitations  upon 
the  exercise  of  its  acknowledged  powers.  The  power  to  tax  may 
be  exercised  oppressively  upon  persons,  but  the  responsibility 
of  the  legislature  is  not  to  the  courts  but  to  the  people  by  whom 
its  members  are  elected.  So  if  *  a  particular  tax  bears  heavily 
upon  a  corporation,  or  a  class  of  corporations,  it  cannot,  for  that 
reason  only,  be  pronounced  contrary  to  the  constitution." 

some  particular  import  for  the  benefit  of  some  home  manufacture,  may 
well  be  questioned  as  being  merely  colorable,  and  therefore  not  warranted 
by  constitutional  principles.  But  if  any  income  is  derived  from  the  levy, 
the  fact  that  incidental  protection  is  given  to  home  industry  can  be  no 
objection  to  it,  for  all  taxes  must  be  laid  with  some  regard  to  their  effect 
upon  the  prosperity  of  the  people  and  the  welfare  of  the  country,  and 
their  validity  cannot  be  determined  by  the  money  returns.  .  .  .  And 
perhaps  even  prohibitory  duties  may  be  defended  as  a  regulation  of  com- 
mercial intercourse."  Principles  of  Constitutional  Law,  3d  Ed.,  58.  See 
also  Hall.  Constitutional  Law,  181 ;  Watson  on  Constitution,  I,  485  n.  s. ; 
Willoughby,  pp.  cit,  I,  607.  See  contra  Pomeroy's  statement:  "A  pro- 
tective tariff  is  certainly  not  indispensable  to  the  execution  of  the  power 
to  lay  taxes ;  but  it  is  so  certainly  one  of  the  methods  of  exercising  that 
power."  Constitutional  Law,  217. 

"The  protective  tariff  laws  are  measures  properly  enacted  under 
the  express  power  to  raise  revenue  and  to  regulate  foreign  commerce." 
McClain,  op.  cit.,  88. 

40  Op.  cit.,  Sees.  1084-1094.  But  note  that  Story  also  regards  it  as 
proper  to  base  protective  tariffs  on  the  taxing  clause,  ibid,  Sees.  962-965. 
He  says,  however,  that  the  commerce  power  is  the  one  from  which  the 
right  to  enact  such  tariffs  "is  more  usually  derived."  Ibid,  Sec.  763. 

«  Act  of  July  13,  1866,  14  Stat.  at  L.  146. 

42  (1869)  8  Wall.  (U.  S.)  533,  19  L.  Ed.  482., 


THE  NATIONAL  POLICE  POfi'ER  259 

It  then  went  on  to  say  that : 

"Under  the  constitution  the  power  to  provide  "a" 'Circulation 
of  coin  is  given  to  Congress  .  .  .  .Having  thus,  in  the  exer- 
cise of  undisputed  constitutional  powers,  undertaken  to  provide 
a  currency  for  the  whole  country,  it  cannot  be  questioned  that 
Congress  may,  constitutionally,  secure  the  benefit  of  it  to  the 
people  by  appropriate  legislation.  To  this  end,  Congress  has 
denied  the  quality  of  legal  tender  to  foreign  coins,  and  has  pro- 
vided by  law  against  the  imposition  of  counterfeit  and  base  coin 
on  the  community.  To  the  same  end,  Congress  may  restrain, 
by  suitable  enactments,  the  circulation  as  money  of  any  notes  not 
issued  under  its  own  authority.  Without  this  power,  indeed,  its 
attempts  to  secure  a  sound  and  uniform  currency  for  the  country 
must  be  futile.  Viewed  in  this  light,  as  we'll  as  in  the  other  light 
of  a  duty  on  contracts  or  property,  we  cannot  doubt  the  consti- 
tutionality of  the  tax  under  consideration." 

The  first  of  the  paragraphs  quoted  has  frequently  been  cited 
as  authority  for  the  statement  that  Congress  can  tax  to  an  un- 
limited degree  for  any  purpose  it  chooses,  irrespective  of  reve- 
nue and  without  fear  of  judicial  interference.43  While  it  is  hard 
to  see  in  the  passage  much  more  than  a  statement  of  the  perfectly 
obvious  doctrine  tbat  a  tax,  otherwise  legal,  cannot  be  held 
void  because  a  court  thinks  it  is  too  high,  it  must  be  admitted 
that  it  does  indicate  an  opinion  on  the  part  of  the  court  that  the 
power  which  is  being  exercised  is  the  taxing  power.  Since  the 
power  is  quite  obviously  not  being  employed  to  raise  revenue, 
such,  a  view  conflicts  with  the  theory  of  taxation  for  revenue 
only  which  now  is  under  consideration.  But  whatever  comfort 
those  who  contend  for  a  federal  police  power  through  taxation 
may  derive  from  this  statement  will  be  minimized  if  not  de- 
stroyed by  the  second  of  the  paragraphs  quoted,  wherein  it  is 
plainly  stated  that  this  destructive  tax  is  merely  a  convenient 
method  of  protecting  the  national  currency.  As  a  matter  of 
fact,  the  Supreme  Court  in  subsequent  decisions44  as  well  as 

43  This  is  apparent  from  a  scrutiny  of  the  debates  in  Congress  upon 
any  of  the  regulatory  or  destructive  taxes  which  have  been  passed.  See 
infra,  p.  266. 

"Miller,  J.  in  The  Head  Money  Cases  said:  "In  the  case  of  Veazie 
Bank  v.  Fenno,  the  enormous  tax  of  eight  per  cent  [it  was  in  fact  ten 
per  cent]  per  annum  on  the  circulation  of  state  banks,  which'  was  de- 
signed, and  did  have  the  effect  to  drive  all  such  circulation  out  of  ex- 
istence, and  was  upheld  because  it  was  a  means  properly  adopted  by  Con- 
gress to  protect  the  currency  which  it  had  created ;  namely  the  legal  ten- 
der notes  and  the  notes  of  the  national  banks.  It  was  not  subject, 
therefore,  to  the  rules  which  would  invalidate  an  ordinary  tax  pure  and 
simple."  (1884)  112  U'.  S.  580,  596,  5  S.  C.  R.  247.  28  L.  Ed.  798.  In 
National  Bank  v.  U.  S.,  (1879)  101  U.  S.  1,  6,  25  L.  Ed.  979,  the  court 


260  MINNESOTA  LAW  REVIEW 

numerous  text  writers45  and  other  authorities46  have  with  prac- 
tical unanimity  regarded  the  Veazie  Bank  case  in  this  light  and 
leaned  to  the  opinion  that  the  constitutional  basis  for  the  levy  im- 
posed by  the  act  of  1866  was  the  currency  power  and  not  the 
taxing  power.47 

In  one  or  two  other  cases  of  less  importance  the  Supreme 
Court  has  recognized  the  distinction  between  levies  made  under 
the  taxing  power  and  those  made  under  other  granted  powers  of 
Congress.  In  the  Head  Money  Cases*9  involving  the  validity  of 
a  duty  of  fifty  cents  for  every  alien  immigrant  brought  by  vessel 
into  the  United  States,  the  court  met  such  objections  to  the  law 
as  rested  upon  its  alleged  non-conformity  to  the  constitutional  re- 
quirements regarding  federal  taxation  by  declaring  that  "the  true 
answer  to  all  these  objections  is  that  the  power  exercised  in  this 

commented  on  the  Act  of  July  13,  1866,  as  follows :  "The  tax  is  on  the 
notes  paid  out,  that  is,  made  use  of  as  a  circulating  medium.  Such  a 
use  is  against  the  policy  of  the  United  States.  Therefore  the  banker 
who  helps  to  keep  up  the  use  of  paying  them  out,  that  is,  employing  them 
as  the  equivalent  of  money  in  discharging  his  obligations,  is  taxed  for 
what  he  does.  The  tax  was  no  doubt  intended  to  destroy  the  use;  but 
that,  as  has  just  been  seen,  Congress  had  the  power  to  do."  Flint  v. 
Stone  Tracy  Co.,  (1911)  220  U.  S.  107,  31  S.  C.  R.  342,  55  L.  Ed.  389, 
Ann.  Cas.  1912B  1312. 

45  Hall,  op.  cit.,  311;   Hare,  op.  cit,  I.  269;   McClain,   op.  cit.,  133; 
Willoughby,  op.  cit.,  I,  580. 

46  Senator   Hoar   declared   in   the   Senate  in    1902    (in   discussing  the 
oleomargarine  tax  passed  in  that  year),  "We  had  no  right  to  suppress 
the  state  banks  in  the  time  of  war  merely  because  the  wildcat  bank  was 
an  evil,  it  being  confined  to  state  business  and  authorized  by  state  power ; 
but   when   we  established   a   national   currency   we  'had   a  right   by   any 
method  of  constitutional  action  to  protect  that  national  currency  against 
the  competition  or  rivalry  of  any  other.    Therefore  we  had  the  right  to 
tax  out  of  existence  the  currency  of  the  state  banks,  just  as  we  should 
have  had  the  right  to  pass  a  law  directly  that  no  state  bank  should  issue 
currency  in   competition   with   ours."     Cong.    Rec.,    Mar.   26,    1902,    Vol. 
35,  3280. 

47  Those   who   adhere  to  the   second   and  third  of  the  three  general 
views  of  the  scope  of  the  federal  taxing  power  place  a  different  interpre- 
tation on  the  Veazie  Bank  Case.    There  is  eminent  authority  holding  the 
power  therein  discussed  to  be 'the  taxing  power.     See  Cooley,   Constitu- 
tional Limitations,  681,  n.  685;  Cooley,  Principles  of  Constitutional  Law, 
58;  Pomeroy,  op.  cit.,  233.     See  also  dissenting  opinion  of  Holmes,  J.  in 
Hammer  v.   Dagenhart,    (1918)   247  U.  S.  251,  277,  62  L.   Ed.   1101,  38 
S.  C.  R.  529.     Senator  Spooner  declared  in  the  Senate  in  1902  that  the 
tax  of  1866  did  not  rest  on  the  currency  power  but  that  it  was  upheld 
"not  because  it  was  required  in  aid  of  another  power,  but  because  under 
the  plain   language  of   Sec.   8.   it    [Congress]    had   the  power  to   do   it." 
Cong.  Rec.,  Apr.  1,  1902,  Vol.  35,  3506. 

4«(1884)  112  U.  S.  580,  5  S.  C.  R.  247,  28  L.  Ed.  798.  The  court  used 
these  words:  "If  this  is  an  expedient  regulation  of  commerce  by  Con- 
gress, and  the  end  to  be  attained  is  one  falling  within  the  power,  the  act 
is  not  void,  because,  with  a  loose  and  more  extended  sense  than  was  used 
in  the  constitution,  it  is  called  a  tax."  Ibid,  p.  596. 


THE  NATIONAL  POLICE  POWER  261 

instance  is  not  the  taxing  power.  The  burden  imposed  on  the 
ship  owner  by  this  statute  is  the  mere  incident  of  the  regulation 
of  commerce."  Thus  the  requirement  that  a  stamp  be  placed  on 
goods  intended  for  export  in  order  to  prevent  fraud  is  not  levy- 
ing a  tax  even  though  a  charge  is  made  for  the  stamp.49  But  if 
the  charge  is  made  for  purposes  of  revenue  rather  than  regula- 
tion it  becomes  a  tax.50 

USE  OF  TAXING  POWER  NOT  FOR  REVENUE  BUT  IN  FURTHERANCE 
OF  DELEGATED  CONGRESSIONAL  AUTHORITY 

The  second  view  of  the  real  scope  of  the  federal  taxing 
power  may  be  regarded  as  middle  ground  between  the  revenue 
only  doctrine  just  discussed  and  the  theory  that  the  power  may 
be  used  for  general  police  purposes.  This  second  position  ad- 
mits the  propriety  of  using  the  power  of  taxation  for  purposes 
other  than  revenue,  but  not  for  all  such  purposes.  Its  adherents 
claim  that  the  grant  of  taxing  power  may  be  exercised  for  pur- 
poses of  revenue  plus  any  other  purposes  lying  within  the  scope 
of  delegated  congressional  authority.  It  has  been  seen  that  those 
who  defend  the  revenue  only  theory  are  under  the  necessity  of 
maintaining  that  when  taxes  are  laid  by  Congress  in  order  to 
regulate  commerce  or  protect  the  currency,  those  taxes  must  be 
viewed  constitutionally  not  as  expressions  of  the  granted  power 
of  taxation  but  rather  as  expressions  of  the  power  to  regulate 
commerce  or  the  currency  respectively.  The  constitutional  basis 
for  such  taxes  is  not  the  power  of  taxation  at  all  but  the  partic- 
ular power  in  aid  of  which  the  taxes  are  laid.  Those  who  hold 
the  second  view,  now  being  analyzed,  maintain  that  taxes  laid 
in  order  to  help  regulate  commerce  are  exercises  of  the  granted 
power  of  taxation  and  that  it  is  quite  proper  to  employ  the  taxing 
power  as  a  means  of  supplementing  and  supporting  any  other 
granted  power  of  Congress.  Having  thus  admitted  that  the  power 
of  taxation  itself,  not  as  an  implied  power  but  as  a  granted  power, 
may  be  used  for  purposes  other  than  the  raising  of  revenue,  it  is 
necessary  to  defend  the  position  that  there  are  still  definite  lim- 
its upon  its  scope.  It  is  necessary  to  show  why,  from  a  consti- 
tutional viewpoint,  the  power  of  taxation  may  be  used  to  regulate 
commerce  or  the  national  currency  but  not  to  regulate  such  mat- 

«  Pace  v.  Burgess,   (1875)  92  U.  S.  372,  23  L.  Ed.  657. 

v.  California.  (1860)  24  How.  (U.  S.)  169,  16  L.  Ed.  655. 


262  MINNESOTA  LAW  REVIEW 

ters   as    child    labor,    lotteries,51    or    political   campaign    contri- 
butions.52 

The  argument  in  support  of  this  position  may  be  summarized 
as  follows :  The  powers  of  Congress  are  enumerated  and  delegat- 
ed. The  grants  of  power  to  Congress  taken  together  were  clearly 
intended  to  constitute  the  sum  total  not  only  of  the  powers  confided 
to  that  body  but  also  of  the  legislative  objects  about  which  or  in 
furtherance  of  which  Congress  might  exercise  those  powers.  In 
short,  the  various  delegations  of  power  must  be  regarded  not 
merely  as  legislative  instruments  placed  in  the  hands  of  Congress 
to  be  used  for  any  or  all  purposes;  they  must  be  regarded  also 
as  the  ends,  objects,  or  purposes  for  which  Congress  may  exercise 
legislative  power.  This,  it  is  stated,  is  what  Marshall  had  in 
mind  when  he  said,  "Let  the  end  be  legitimate,  let  it  be  within 
the  scope  of  the  constitution,  and  all  means  which  are  appro- 
priate, etc.  .  .  .  are  constitutional;"53  and  when  in  the  same 
case,  he  declared,  "Should  Congress,  under  the  pretext  of  exe- 
cuting its  powers,  pass  laws  for  the  accomplishment  of  objects 
not  entrusted  to  the  government,  it  would  become  the  painful  duty 
of  this  tribunal,  should  a  case  requiring  such  a  decision  come 
before  it,  to  say  that  such  an  act  was  not  the  law  of  the  land."54 
It  follows,  therefore,  that  when  Congress  attempts,  through  the 

31  A  destructive  tax  on  lotteries  was  urged  upon  Congress  with  great 
vigor.  See  remarks  of  Senator  White  (now  Chief  Justice)  of  Louisiana 
upon  the  propriety  of  this  legislation :  "When  my  people  were  clamoring 
for  its  suppression  and  crowding  upon  me  petitions  to  introduce  a  bill 
suppressing  the  Louisiana  Lottery  by  the  exercise  of  the  power  of  fed- 
eral taxation,  I  said  to  them,  'Great  as  is  this  evil,  there  is  an  evil  yet 
greater,  and  that  is  the  disruption  and  the  destruction  of  all  the  great 
principles  of  our  government  by  calling  upon  the  Federal  Government  to 
do  an  illegal  and  unconstiutional  thing.  .  .  .'  I  declined  to  introduce 
a  bill  taxing  the  Louisiana  Lottery  by  the  Federal  Government  because 
I  thought  it  violated  the  Federal  Constitution."  Cong.  Rec.,  July  21, 
1892,  Vol.  23,  6519.  Such  bills  were,  however,  introduced.  Compare  with 
this  the  view  of  Judge  Cooley,  set  forth  in  an  article  advocating  such  a 
tax,  infra,  note  81. 

52  Senator  Thomas  (Col.)  introduced  an  amendment  to  the  war  rev- 
enue bill  of  1919,  providing  for  a  tax  of  100%  on  any  campaign  contri- 
bution in  excess  of  $500  in  any  primary  or  election  campaign  for  the 
nomination  or  election  of  presidential  electors,  senators,  or  members 
of  the  House.  Gong.  Rec.,  Oct.  10,  1918,  Vol.  56,  11169.  The  amendment 
was  defeated. 

ssMcCulloch  v.  Maryland,  (1819)  4  Wheat.  (U.  S.)  316,  421,  4  L. 
Ed.  579. 

54  Ibid,  p.  423.  For  an  analysis  of  this  argument  see  Tucker,  op.  cit., 
I :  Green,  The  Child  Labor  Law  and  the  Constitution,  111.  Law  Bull.,  April, 
1917,  16.  Compare  Marshall's  statement,  "Congress  is  not  empowered 
to  tax  for  purposes  which  are  within  the  exclusive  province  of  the  state." 
Gibbons  v.  Ogden,  (1824)  9  Wheat.  1,  199,  6  L.  Ed.  23. 

See  also  Kent,  Commentaries,  13th  Ed.  I  279. 


THE  NATIONAL  POLICE  POWER  263 

instrumentality  of  a  granted  power  such  as  that  of  taxation,  to 
regulate  or  control  a  subject  matter  nowhere  confided  to  its  au- 
thority by  virtue  of  any  delegation  of  power,  such  as  the  subject 
of  child  labor,  it  has  exceeded  its  powers,  usurped  the  reserved 
authority  of  the  states,  and  violated  the  tenth  amendment.55 

This  same  doctrine  may  be  put  in  slightly  different  form  by 
saying  that  in  exercising  the  powers  delegated  to  it  by  the  consti- 
tution Congress  must  be  regarded  as  exercising  them  under  the 
implied  limitation  that  they  shall  be  employed  only  for  the  ob- 
jects or  ends  confided  by  the  constitution  to  congressional  author- 
ity. The  taxing  power  has  long  since  been  held  subject  to  two 
other  implied  limitations,  the  binding  force  of  which  there  is 
no  disposition  to  question :  one  is  the  limitation  of  public  purpose 
in  respect  to  the  use  of  the  money  raised  by  taxation  ;58  the  other 
is  the  limitation  implied  from  the  essential  nature  of  our  federal 

55  This  doctrine  has  been  accepted  by  the  supreme  court  of  the  Com- 
monwealth of  Australia.     In  King  v.  Barger,  (1908)  6  Com.  L.  R.  41,  a 
federal  tax  on  articles  manufactured  in  the  states,  dependent  upon  the 
rate   of  wages   paid  and  designed  to   control   such  wage  rate,  was   held 
to  be  invalid  on  the  ground  that  the  federal  government  had  no  authority 
to  control  wages  in  the  states.     The  following  excerpts  indicate  the  main 
features  of  the  reasoning  of  the  court : 

Higgins,  J.,  "This  act  is  not  a  taxing  act.  This  is  quite  a  novel  form 
of  legislation,  and,  if  held  to  be  valid,  will  give  to  the  Commonwealth 
Parliament  complete  control '  over  everything  which  was  intended  to  be 
reserved  to  the  states.  Under  the  guise  of  a  taxing  act  with  exemptions, 
the  Commonwealth  Parliament  could  control  the  whole  of  the  business 
and  social  relations  of  the  people  of  the  Commonwealth,  and  the  pro- 
visions of  the  constitution,  intended  to  reserve  to  the  states  the  right  of 
managing  their  internal  affairs,  would  be  worthless.  (P.  47)  .  .  . 
The  Commonwealth  Parliament  can  tax  any  person  and  any  thing;  and 
it  can  divide  persons  and  things  into  classes  for  the  purpose  of  taxation. 
But  the  moment  the  particular  discrimen  for  distinguishing  between  one 
class  and  another  in  itself  involves  a  regulation  of  conduct  which  is 
within  the  exclusive  power  of  the  state  legislature,  the  Commonwealth 
legislation  is  invalid."  (P.  52.) 

Isaacs,  C.  J.,  "The  power  of  taxation  granted  to  the  Commonwealth 
Parliament  does  not  authorize  the  impairment  of  the  power  reserved  to 
the  states  to  regulate  wages."  (P.  49.)  Par.  107  Ch.  V  of  the  Com- 
monwealth of  Australia  Constitution  Act  reads :  "Every  power  of  the 
Parliament  of  a  colony  which  has  become  or  becomes  a  state,  shall,  un- 
less it  is  by  this  Constitution  exclusively  vested  in  the  Parliament  of  the 
Commonwealth  or  withdrawn  from  the  Parliament  of  the  state,  con- 
tinue as  at  the  establishment  of  the  Commonwealth,  or  as  at  the  admis- 
sion or  establishment  of  the  state,  as  the  case  may  be." 

Compare  also  the  last  clause  in  the  following  sentence  from  the 
Veazie  Bank  case,  supra :  "It  would  undoubtedly  be  an  abuse  of  the  power 
[of  taxation]  if  so  exercised  as  to  impair  the  separate  existence  and 
independent  self  government  of  the  states,  or  if  exercised  for  ends  in- 
consistent with  the  limited  grants  of  power  in  the  constitution."  P.  451. 
See  Tucker,  op.  cit,  I,  373. 

56  Loan  Association  v.  Topeka,    (1875)   20  Wall.    (U.S.)    655.  L.   Ed. 
455.    This  case  involved  the  taxing  power  of  the  states  but  the  principles 


264  MINNESOTA  LAW  REVIEW 

system  which  forbids  Congress  to  tax  the  governments,  agencies, 
or  functions  of  the  state.57  It  is  urged  that  the  taxation  by  Con- 
gress of  the  salary  of  a  state  judge  is  no  more  subversive  of  the 
fundamental  principles  of  our  constitutional  system  than  the 
use  by  Congress  of  its  taxing  power  to  destroy  child  labor  within 
the  states.58  For  to  what  purpose  did  the  framers  of  the  consti- 
tution reserve  certain  subjects  to  the  exclusive  jurisdiction  of 
the  states  if  Congress,  under  the  guise  of  an  exercise  of  the 
power  to  tax,  may  step  in  and  control  those  subjects?  To  admit 
the  power  to  tax  on  the  part  of  Congress  for  any  and  all  pur- 
poses would  "abrogate  and  destroy  every  limitation  found  in  the 
constitution  and  every  reservation  in^favor  of  the  states."59 

It  is  interesting  to  note  that  the  present  Chief  Justice  of  the 
United  States  seems  to  share  the  view  now  under  consideration. 
Mr.  White  was  United  States  senator  from  Louisiana  at  the  time 
a  destructive  tax  upon  cotton  and  grain  futures  was  being  de- 
bated in  Congress  in  1892. 60  At  that  time  he  expressed  himself 
vigorously  and  at  length  upon  the  constitutionality  of  the  pro- 
posed tax,  taking  the  position  that  such  "subterf  ugeous  and  cheat- 
ing" use  of  the  taxing  power  was  clearly  outside  the  constitu- 
tional authority  of  Congress.  He  took  occasion  in  the  course  of 
his  argument  to  draw  the  distinction  between  the  use  of  regu- 
latory or  destructive  taxation  in  aid  of  the  exercise  of  delegated 
congressional  power  and  its  use  for  purposes  not  so  delegated. 

"In  other  words,  I  contend,"  he  declared,  "that  where  power 
to  destroy  exists,  the  use  of  a  wrong  instrumentality  to  do  the 
destruction,  may  be  the  abuse  of  an  instrumentality  but  not  an 
abuse  of  power,  because  the  power  to  destroy  is  vested.  But 
where  the  power  to  destroy  does  not  exist,  the  use  of  an  instru- 
mentality  to  destroy  that  which  there  is  no  power  to  destroy  is 

involved  are  applicable  with  equal  force  to  the  federal  taxing  power.  It 
should  be  noted  that  the  limitation  of  public  purpose  does  not  rest  on 
the  due  process  of  law  clause  as  has  been  sometimes  assumed. 

"Collector  v.  Day.  (1871)  11  Wall  (U.  S.)  113,  20  L.  Ed.  122;  Fifield 
v.  Close,  (1867)   15  Mich.  505. 

"The  principle  is  equally  applicable  to  a  case  where  the  court  can  see 
that  a  power  of  government  is  called  into  play  not  for  its  professed 
object  but  solely  for  the  purpose  of  defeating  rights  that  cannot  be  de- 
stroyed consistently  with  any  other  of  the  principles  upon  which  the  con- 
stitution rests,  but  there  is  no  principle  more  fundamental  than  the  prin- 
ciple in  fulfillment  of  which  the  national  government  was  created  of 
circumscribed  powers,  each  conferred  for  the  accomplishment  of  a  speci- 
fied object,  purpose  or  end."  Green,  op.  cit.,  111.  Law  Bull.,  April,  1917,  26. 

9  Remarks  of  Senator  White.  Cong.  Rec.,  July  21,  1892,  Vol.  23,  6516. 

10  The  question  of  the  constitutionality  of  this  bill  was  discussed  at 
great  length.     Senator  White's  long  speech  against  the  bill  is   found  in 
Cong.  Rec.,  July  21,  1892,  Vol.  23,  6513-6520.    The  bill  was  defeated. 


THE  NATIONAL  POLICE  POWER  265 

not  alone  an  abuse  of  the  instrumentality  but  a  usurpation  of 
power  itself."61 

And  in  commenting  upon  the  Veazie  Bank  case,  he  went  on 
to  state  that  according  to  that  decision  the  destructive  tax  on 
state  bank  notes  could  be  regarded  as  either  a  prohibition  or  a  tax. 
If  it  be  viewed  as  a  prohibition,  then  it  is  merely  an  exercise  of 
the  admitted  power  of  Congress  over  the  currency.  If  it  be 
viewed  as  a  tax,  it  is  not  unconstitutional,  "because  Congress  had 
the  power  to  use  the  taxing  power  to  prohibit  that  which  it  had 
the  right  to  prohibit  under  another  provision  of  the  constitution." 
But  he  was  emphatic  in  his  belief  that  this  affords  no  precedent 
for  the  use  of  the  power  to  tax  for  purposes  not  confided  to  con- 
gressional authority.62 

DESTRUCTIVE  OR  REGULATORY  TAXATION  FOR  POLICE  PURPOSES 
OUTSIDE  THE  SCOPE  OF  DELEGATED  CONGRESSIONAL  AUTHORITY 

It  is  clear  that  Congress  has  not  acceded  to  either  of  the  views 
thus  far  presented.  It  has  regarded  the  purposes  for  which  it  may 
use  its  power  to  tax  as  limited  neither  to  the  raising  of  revenue  nor 
to  the  furtherance  of  objects  within  its  delegated  authority.  It  has 
legislated  more  than  once  upon  the  theory  that  the  power  to  tax 
is  available  as  a  means  or  instrument  for  accomplishing  any  pur- 
pose which  will  further  the  national  welfare  and  that  Congress 
may  regulate  or  destroy  by  taxation  things  over  which  it  plainly 
has  no  direct  authority.  Such  legislation  may  be  briefly  reviewed. 

1.  Instances  of  Federal  Taxation  for  General  Police  Pur- 
poses.63 In  1886  it  was  proposed  to  levy  an  excise  tax  of  ten 
cents  per  pound  upon  all  oleomargarine  manufactured  in  the 

si  Ibid,  6517. 

62  Ibid,  6517.     He  further  pointed  out  that  the  power   to  lay  a  pro- 
hibitive tariff  did  not  furnish  a  precedent  for  the  tax  under  discussion. 
To  argue  that  it  does,  "overlooks  the  clear  distinction  between  the  nature 
of  the  taxing  power  lodged  in  the  federal  government  for  the  purpose  of 
imposts  and  the  nature  of  the  taxing  power  lodged  in  the  federal  gov- 
ernment for  the  purpose  of  internal  taxation.     .     .     .     When  the  federal 
government  deals  with  imposts  the  constitution  has  vested  in  it  the  power 
which   would  be  vested   in  any  government  in  that  regard.     .     .     .     No 
power  as  to  imposts  was  reserved  in  the  states  by  the  federal  constitution. 
All  the  lawful  powers  of  government  which  could  be  exercised  in  that 
particular  passed  into  the  life  and  being  of  the  federal  government  by 
the  lodgment  in  that  government  of  the  power  to  levy  imposts — imposts 
deal  externally  beyond  our  borders.     Beyond  those  borders  the  power  of 
the   federal   government  was    restricted   and   restrained   by  no  limitation 
resulting  from  a  reservation  in  the  constitution."     Ibid,  6516. 

63  No  attempt  has  here  been  made  to  search  out  all  the  cases  in  which 
Congress  has  laid  taxes  for  purposes  of  regulation.    Only  those  are  here 
treated   regarding  which  there  has  been   sharp  controversy  on  the  point 
of  constitutionality. 


266  MINNESOTA  LAW  REVIEW 

United  States.  After  considerable  debate  in  both  houses  of 
Congress,  the  tax  was  reduced  to  two  cents  per  pound,  a  rate 
so  low  as  to  preclude  the  tax  from  being  classed  as  destructive 
in  character.64  In  1902,  however,  a  tax  of  ten  cents  per  pound 
was  placed  upon  all  oleomargarine  colored  to  look  like  butter;65 
and  this  tax  has  accomplished  the  purpose  for  which  it  was  ad- 
mittedly imposed,  the  destruction  of  the  business  of  manufac- 
turing colored  oleomargarine.  In  1892  it  was  proposed  in  Con- 
gress to  place  a  license  tax  of  $1000  upon  all  brokers  or  dealers 
engaged  in  the  selling  of  cotton  or  grain  on  future  contracts  or 
options  and  a  tax  of  five  cents  per  pound  or  twenty  cents  per 
bushel  upon  all  products  so  sold.66  This  tax  did  not  become  law, 
but  in  1914  Congress  did  impose  a  tax  of  two  cents  per  pound  upon 
all  cotton  sold  on  future  contracts.67  In  1890  a  tax  of  ten  dollars 
was  imposed  upon  the  sale  of  smoking  opium.68  In  1914  this  tax 
was  raised  to  $300  per  pound.69  In  1912  Congress  drove  out  of 
existence  the  manufacture  of  matches  made  from  poisonous  phos- 
phorus by  subjecting  these  matches  to  the  crushing  tax  of  two 
cents  per  hundred.70  Finally,  as  has  been  already  stated,  Con- 
gress has  placed  a  tax  of  ten  per  cent  upon  the  net  profits  of  es- 
tablishments employing  children.71 

An  examination  of  the  congressional  debates  on  these  mea- 
sures makes  perfectly  clear  that  Congress  was  not  trying  to 
raise  revenue  but  was  trying  to  exercise  police  power  in  matters 
outside  the  scope  of  its  delegated  authority.  The  oleomargarine 
taxes  were  openly  defended  upon  the  ground  that  the  legitimate 
dairy  interests  of  the  country  must  be  protected  against  the  de- 
structive competition  of  a  product  alleged  to  be  not  only  inferior 
but  positively  dangerous  to  health.72  The  taxes  on  options  or  sales 
on  future  contracts  were  urged  as  necessary  restraints  on  com- 

<H  Act  of  Aug.  2,  1886,  24  Stat.  at  L.  209. 

65  Act  of  1902,  32  Stat.  at  L.  193. 

68  The  text  of  this  proposed  measure  is  printed  in  the  Cong.  Rec., 
July  21,  1892,  Vol.  23,  6514. 

«7  Act  of  Aug.  18,  1914,  38  Stat.  at  L.  693.  This  was  declared  uncon- 
stitutional by  a  United  States  district  court  because,  being  a  revenue 
measure,  it  originated  in  the  Senate  rather  than  in  the  House  of  Repre- 
sentatives as  required  by  art.  I,  sec  7,  cl.  1  of  the  constitution.  Hubbard  v. 
Lowe,  (1915)  226  Fed.  135.  It  was  re-enacted  as  Act  of  Aug.  11,  1916, 
39  Stat.  at  L.  476. 

68  Act  of  Oct.  1,  1890,  26  Stat.  at  L.  5670. 

«»  Act  of  Jan.  17,  1914.  38  Stat.  at  L.  277. 

70  Act  of  April  9,  1912,  37  Stat.  at  L.  81.    The  constitutionality  of  this 
act  has  never  been  passed  upon  by  any  court. 

71  Supra,  note  10. 

72  See  debates  on  H.  R.  9206,  Index  to  Cong.  Rec.,  Vol  35. 


THE  NATIONAL  POLICE  POWER  267 

mercial  gambling.73  When  the  tax  on  white  phosphorus  matches 
was  being  discussed  in  the  Senate  in  1912,  Senator  Lodge,  who 
was  sponsoring  the  bill,  declared  without  hesitation,  "The  real 
purpose  of  the  bill  is  to  destroy  an  industry  that  ought  to  be 
destroyed."74  He  was  equally  frank  as  to  the  purpose  of  the 
recent  child  labor  tax,  as  were  most  of  the  other  friends  of  the 
bill.75  In  fact,  the  debates  on  this  measure  show  that  the  Senate 
Committee  on  Finance,  in  estimating  the  revenue  expected  from 
the  various  taxes  included  in  the  Revenue  Act  of  1919,  placed 
no  estimate  opposite  the  child  labor  tax,  indicating  that  they  did 
not  expect  any  revenue  to  flow  from  it  into  a  sadly  depleted 
treasury.76 

2.  Argument  in  Support  of  This  Theory.  In  order  to  show 
that  Congress  enjoys  the  broad  power  of  taxation  for  police  pur- 
poses it  is  necessary  at  the  outset  to  dispose  of  the  revenue  only 
theory  already  discussed.77  There  are  two  steps  in  this  process 
of  refutation.  It  is  pointed  out,  first,  that  the  power  of  taxation 
granted  to  Congress  is  no  different  in  character  and  no  more 
limited,  save  as  to  the  specific  requirements  of  apportionment 
and  uniformity  and  the  specific  prohibition  against  export  taxes, 
than  is  the  power  of  taxation  possessed  by  the  states  of  the 
union  or  by  any  other  sovereign  government.  As  Senator  Ed- 
munds expressed  it  in  the  debate  on  the  oleomargarine  tax  stat- 
ute of  1886,  "the  taxing  power  of  the  United  States  is  just  as 
extensive,  just  as  supreme,  just  as  illimitable  as  the  taxing  power 
of  every  state  is."78  Gray  states  this  position  even  more  strik- 
ingly in  the  following  passage  commenting  upon  the  intentions 
of  the  f ramers  of  the  federal  constitution : 

"See  debates  on  Senate  bill  110;  Index  to  Cong.  Rec.,  Vol.  51. 

7*  Cong.  Rec.,  April  3,  1912,  Vol.  4235.  In  regard  to  the  same  bill 
Mr.  Longworth  (Ohio)  declared  in  the  House,  "It  is  the  purpose  of  the 
bill  to  destroy  it  [the  poisonous  match  industry]  and  that  is  the  reasoo 
I  am  for  the  bill,  because  I  want  it  stamped  out."  Ibid.  3973. 

75  Supra,  notes  4  and  12. 

76  In  response  to  a  question  on  this  point.   Senator  Simmons,  chair- 
man of  the  Committee  on  Finance,  stated :  "I  can  only  say  to  the  Senator 
that  I  do  not  think  there  was  an  estimate  made  as  to  the  amount  of  rev- 
enue that  would  be  raised  by  it    ...    and   I   do  not  think  any  one 
suggested  that  any  would  be  derived."     Cong.  Rec.,  Vol.  57,  612.     It  is 
interesting   to   compare  this   with   the    argument   of    Mr.   Miller   Outcalt 
for  the  plaintiff  in  error  in  the  McCray  case :  "It  is  not  out  of  place  to  ad- 
vert to  an  overflowing  treasury,  and  the  expediency  which  this  same  Con- 
gress felt  in  reducing  the  revenue  derived  under  the  Spanish  War  Acts, 
in  this  same  year,  by  an  amount  equal  to  $70,000,000.    The  law  was  avow- 
edly not  a  revenue  measure  but  a  police  regulation."    43  L.  Ed.  78,  80. 

77  Supra,  p.  251. 

78  Cong.  Rec.,  July  19,  1886,  Vol.  17.  7139. 


268  MINNESOTA  LAW  REVIEW 

"The  example  of  a  strong  general  government  which  they  had 
in  mind,  and  the  only  one  with  which  most  of  them  were  familiar, 
was  the  government  of  Great  Britain.  The  powers  of  that  gov- 
ernment were  well  known  to  them,  its  machinery  had  been  cop- 
ied in  most  of  the  states.  In  view  of  these  facts  it  may  be  gen- 
erally stated  that  in  their  bestowal  of  powers  on  the  general  gov- 
ernment and  in  their  restriction  of  those  powers  (particularly  of 
taxing  powers,  since  dispute  as  to  taxation  was  one  of  the  chief 
causes  of  the  Revolution)  they  intended: 

"1.  To  grant  to  the  general  government  those  powers  usually 
exercised  by  the  government  of  Great  Britain,  and  in  matters  of 
taxation  to  grant  the  same  general  authority  of  classification  and 
selection  as  was  possessed  by  the  British  government  and  by  the 
state  governments  modeled  upon  it. 

"2.  To  restrict  those  powers  thus  granted  in  such  a  way  as 
to  prevent  discrimination  among  the  states."79 

In  short,  unless  state  governments  and  the  governments  of 
sovereign  nations  generally  at  the  time  of  the  formation  of  our 
national  government  were  limited  in  the  use  of  their  taxing  pow- 
ers to  the  raising  of  revenue,  there  is  no  reason  to  assume  that 
the  taxing  power  granted  to  Congress  was  so  limited. 

This  raises  the  question,  in  the  second  place,  whether  the 
power  of  taxation  enjoyed  by  sovereign  governments  at  this 
period  was  thus  limited  to  the  raising  of  revenue.  On  this 
point  there  can  be  no  clearer  or  more  definite  statement  than 
that  of  Story's: 

"Nothing  is  more  clear,  from  the  history  of  commercial  na- 
tions, than  the  fact  that  the  taxing  power  is  often,  very  often 
applied  for  other  purposes  than  revenue.  It  is  often  applied  as 
a  regulation  of  commerce.  It  is  often  applied  as  a  virtual  pro- 
hibition upon  the  importation  of  particular  articles,  for  the  en- 
couragement and  protection  of  domestic  products,  and  industry; 
for  the  support  of  agriculture,  commerce  and  manufactures,  for 
retaliation  upon  foreign  monopolies  and  injurious  restrictions ; 
for  purposes  of  state  policy  and  domestic  economy;  sometimes 
to  banish  a  noxious  article  of  consumption;  sometimes,  as  a 
bounty  upon  an  infant  manufacture,  or  agricultural  product ; 
sometimes,  as  a  temporary  restraint  of  trade;  sometimes,  as  a 
suppression  of  particular  employments;  sometimes,  as  a  prerog- 
ative power  to  destroy  competition  and  secure  a  monopoly  to 
the  government 

"If,  then,  the  power  to  lay  taxes,  being  general,  may  embrace, 
and  in  the  practice  of  nations  does  embrace,  all  these  objects, 
either  separately  or  in  combination,  upon  what  foundation  does 
the  argument  rest  which  assumes  one  object  only,  to  the  exclu- 

79  Limitations  of  the  Taxing  Power,  p.  350. 


THE  NATIONAL  POLICE  POWER  269 

sion  of  all  the  rest,  which  insists,  in  effect,  that  because  revenue 
may  be  one  object,  therefore  it  is  the  sole  object  of  the 
power  .  .  .  ?"so 

Among  the  eminent  authorities  who  have  agreed  with  this 
view  may  be  mentioned  Judge  Cooley,  who,  in  1892,  in  urging 
Congress  to  place  a  destructive  tax  on  lotteries,  declared,  "Rev- 
enue is  not  and  has  never  been  the  sole  object  of  taxation."81 

In  the  third  place,  it  should  be  noted  that  the  constitutional 
clause  granting  the  power  of  taxation  seems  to  repudiate  the 
revenue  only  doctrine.  By  the  plain  words  of  that  clause,  Con- 
gress enjoys  the  power  to  "lay  taxes,  to  pay  the  public  debts 
and  provide  for  the  common  defense  and  general  welfare."  Now, 
as  Story  pertinently  inquires : 

"If  the  common  defense  or  general  welfare  can  be  promoted 
by  laying  taxes  in  any  other  manner  than  for  revenue,  who  is 
at  liberty  to  say  that  Congress  cannot  constitutionally  exercise 
the  power  for  such  a  purpose  ?  No  one  has  a  right  to  say  that 
the  common  defense  and  general  welfare  can  never  be  promoted 
by  laying  taxes,  except  for  revenue.  No  one  has  ever  yet  been 
bold  enough  to  assert  such  a  proposition."82 

That  Hamilton  placed  a  similar  broad  construction  upon  this 
clause  is  evidenced  by  the  fact  that  he  defended  the  constitu- 
tionality of  the  protective  tariff  as  an  exercise  of  the  congres- 

80  Commentaries,    Sec.   I,   965,   966.     For    analysis    in   this    respect    of 
the  taxes    imposed   by   England   to   which  the    American   colonists,  took 
exception    see  Farrand,   The   Development   of   the   United    States,   p.   37. 
Farrand  quotes  Madison's  statement  made  after  the  Revolution,  that  "The 
line  of  distinction  between  the  power   of   regulating  trade  and   that  of 
drawing  revenue  from  it,  which  was  once  considered  the  barrier  of  our 
liberties,   was    found,    on    fair   discussion,  to   be   absolutely    undefmable." 
Ibid,  38      See  also  Story,  op.  cit.  II,  Sec.   1080.     For  careful  argument 
from  the  standpoint  of  economics  that  taxes  laid  tor  purposes  of  regu- 
lation and  destruction  should  be  subsumed  under  the  power  of  taxation 
and  not  under  the  police  power,  see  Seligman,  Essays   in  Taxation,  pp. 
402-406,  411-413. 

81  Federal   Taxation   of   Lotteries,    (1892)    Atlantic   Monthly,   Vol.   69, 
523.     Supplementing  the  phrase  quoted  in  the  text,  Judge  Cooley  adds  that 
the  lawmaker  "must  net  aim  to  make  his  law  as  productive  as  possible, 
but  rather  to  make  the  demand  upon  the  people  as  little  burdensome  as 
may  be,  and  at  the  same  time,  as  far  as  possible,  incidentally  beneficial." 
Commenting    further   upon    the    proposed   tax    he  says :    "Such    taxation 
would,  of  course,  contemplate  no  revenue  to  the  government.     It  would 
be  imposed  for  the  express  purpose  of  destroying  altogether  the  institu- 
tions which,  by  any  unfriendly  action  of  Congress,  taken  with  the  express 
intent   of  destruction   and   shaped   professedly  to   that   end,  it   would   be 
powerless   to    reach.     It   would,    in  other   words,   be  making   a   practical 
application  by  the  federal  government  of  the  legal  aphorism  that  'a  power 
to  tax  is  a  power  to  destroy.'     Ibid,  p.  526.     Arguments  for  and  against 
the  tax  are  discussed  in  the  article.     Compare  with  the  state-nent  of  same 
writer  in  his  work  on  Taxation,  3d  Ed.  I,  191. 

82  Commentaries.  I. 


270  MINNESOTA  LAW  REVIEW 

sional  taxing  power  for  the  purpose  of  providing  for  "the  com- 
mon defense  and  general  welfare."83 

After  dealing  thus  with  the  revenue  only  theory  of  the  fed- 
eral taxing  power,  the  friends  of  the  child  labor  tax  and  similar 
legislation,  in  order  to  establish  their  case,  must  still  demolish 
the  proposition  that  Congress  may  use  its  power  of  taxation  for 
only  such  purposes  as  fall  within  the  scope  of  the  other  dele- 
gated powers  of  Congress.84  The  argument  on  this  point  may 
be  summarized  thus :  In  the  first  place,  while  Congress  enjoys 
only  delegated  powers,  those  powers,  save  when  limited  by  an 
express  restriction  or  prohibition,  are  plenary  and  complete. 
This  is  elementary  constitutional  law.85  "Except  when  expressly 
limited,  ...  a  power  granted  to  the  federal  government  is  con- 
strued to  be  absolute  in  character."86  This  means  that  apart 
from  these  specific  exceptions  Congress  has  the  same  power  to 
lay  taxes  or  to  regulate  commerce  as  is  possessed  by  the  British 
Parliament  or  any  other  sovereign  government  in  the  world.87 
Its  granted  powers  do  not  shrink  or  melt  away  by  the  insidious 
working  of  implied  restrictions  or  reservations.  Secondly,  it 
must  be  remembered  that  what  section  8  of  article  I  of  the  con- 
stitution grants  to  Congress  is  "power."  Nothing  is  said  about 
the  purposes  for  which  the  various  grants  of  power  there  dele- 
gated are  to  be  used.  The  grant  stands  as  an  independent  and 
self-sufficient  delegation  of  authority.  Congress  is  not  given 
a  list  of  topics  about  which  it  is  to  be  allowed  to  pass  laws ;  nor 
is  it  given  merely  a  set  of  legislative  tools  or  methods  to  be  used 
in  doing  a  certain  limited  group  of  assigned  tasks  and  in  the 
use  of  which,  to  borrow  Professor  Powell's  apt  phrase,  Congress 
"suffers  the  limitations  of  the  player  at  jackstraws,"88  fearful 

83  Report  on   Manutactures,   Dec.    5,   1791.     Works,   Lodge   Ed.,   Vol. 
IV,   151.     It  should   be  noted,  however,   that  Hamilton's   argument   did 
not  proceed  on  the  assumption  that  no  revenue  would  be  raised  by  the 
protective  tariffs  proposed. 

84  Supra,  p.  261. 

85  "But   it    must    not    be    forgotten    that    when    the    constitution    was 
adopted  there   came   into    existence  a  nation    (as    distinguished    from   a 
league  of  states)   which  possessed  absolute  and  unlimited  inherent  pow- 
ers."   Black,  op.  cit,  35;  Hall,  op.  cit.,  255;  Hare,  op.  cit.,  94;  McClain, 
op.   cit,  .43 ;    Pomeroy,   op.   cit.,   70.     McCulloch  v.    Maryland,    supra,   p. 
•'05;  United  States  v.  Cruikshank,  (1876)  92  U.  S.  542,  550,  23  L.  Ed.  588. 

86  Willoughby,  op.  cit.,  I,  54. 

87  Supra,  p.  268.     Story,  op.  cit.,  II,  1081. 

88  The   Child   Labor   Decision,   The  Nation,  June  22,   1918,  Vol.    106, 
p.  730. 


THE  NATIONAL  POLICE  POWER  27l 

always  of  trespassing  on  the  domain  of  state  authority.88  It  is 
given  the  power  to  lay  taxes  and  to  coin  money  and  to  regulate 
commerce  and  these  powers  are  to  be  used  in  the  broad  discre- 
tion of  Congress  for  the  promotion  of  the  national  welfare. 
Finally,  by  very  definition  it  is  utterly  impossible  for  the  reserved 
powers  of  the  states  to  operate  as  a  limitation  upon  the  scope  or 
method  of  operation  of  the  powers  delegated  to  Congress  by  the 
constitution.  Such  a  conception  involves  a  flat  contradiction  in 
terms.  What  are  the  reserved  powers  of  the  states  but  the  pow- 
ers left  after  the  powers  of  Congress  have  been  delegated?90 
Curious  indeed  would  be  the  arithmetical  process  of  subtraction 
in  which  the  remainder,  somehow  rendered  inviolable  in  advance, 
helped  determine  the  size  of  the  subtrahend.  And  yet  precisely 
this  absurdity  is  involved  in  the  theory  that  the  reserved  powers 
of  the  states  have  become  transformed  into  a  sort  of  ark  of  the 
covenant  which  Congress  in  the  exercise  of  its  granted  authority 
must  not  touch.  If  a  power  is  delegated  to  Congress,  then  by 
virtue  of  that  very  fact  there  can  be  no  reserved  power  of  the 
states  with  which  it  could  in  any  way  or  under  any  circum- 
stances conflict.91 

If  Congress  is  not  limited  in  using  its  power  to  tax  to  the 
raising  of  revenue  or  to  such  purposes  as  may  be  subsumed 
under  the  grants  of  power  in  article  I,  it  follows  that  that  power 
may  be  wielded  generously  in  any  way  which  will  promote  the 
common  defense  and  general  welfare.  It  may  stimulate  industry ; 
it  may  regulate  the  size  of  incomes  or  private  fortunes ;  it  may 

89  "The   question   then    is   narrowed   to   whether   the   exercise   of    its 
otherwise    constitutional    power    by    Congress    can    be    pronounced    un- 
constitutional because  of   its  possible  reaction  upon  the  conduct  of  the 
states  in  a  matter  upon  which  I  have  admitted  that  they  are  free  from 
direct  control.    I  should  have  thought  that  that  matter  had  beer  disposed 
of  so  fully  as  to  leave  no  room  for  doubt.     I  should  have  thought  that 
the  most  conspicuous  decisions  of  this  Court  had  made  it  clear  that  the 
power  to  regulate  commerce  and  other  constitutional  powers  could  not  be 
cut  down  or  qualified  by  the  fact  that  it  might  interfere  with  the  carrying 
out   of   the  domestic  policy   of  any  state."     Dissenting   opinion   of   Mr. 
Justice  Holmes,  Hammer  v.  Dagenhart,  supra. 

90  "The  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states  respectively, 
or  to  the  people."     Constitution  of  U.  S.,  Amendment  X. 

91  Compare  Professor   Powell's  argument  on  this  point  in  respect1  to 
the  Keating-Owen  Act:  "If  the  child  labor  law  was  a  proper  exercise  of 
the  power  to  regulate  interstate  commerce,  it  was  by  the  explicit  terms 
of    the   tenth    amendment  net   an    exercise   of   a   power   reserved  to   the 
states.    If  it  was  not  a  proper  exercise  of  the  power  to  regulate  interstate 
commerce,  it  was  unconstitutional,  and  nothing  more  need  be  said  about 
it."     The  Child  Labor  Law.  the   Tenth  Amendment  and  the  Commerce 
Clause,   (1918)  3  So.  Law  Quar.  175. 


272  MINNESOTA  LAW  REVIEW 

suppress  vice  or  other  conditions  fraught  with  menace  to  the 
people.  In  short,  questions  which  may  arise  regarding  the  pur- 
poses for  which  Congress  uses  its  power  of  taxation  are  ques- 
tions solely  of  legislative  policy  and  not  in  any  sense  questions 
of  constitutional  law.92 

The  right  to  use  the  taxing  power  for  these  broad  purposes 
would  not,  even  in  the  judgment  of  its  advocates,  warrant  its 
exercise  in  such  a  way  as  to  destroy  fundamental  private  rights. 
Should  Congress  impose  a  tax  of  a  thousand  dollars  upon  all 
persons  who  ate  bread  or  were  members  of  the  Roman  Catholic 
Church,  the  court  would  of  necessity  decide  that  such  an  exercise 
of  the  power  to  tax  was  an  invasion  of  the  rights  which  are, 
in  any  free  government,  inviolable.93  Such  a  limitation  would 
clearly  be  in  line  with  the  theory  upon  which  the  Supreme  Court 
has  held  that  taxes  may  be  levied  only  for  a  public  purpose.94 
But  these  limitations  in  behalf  of  the  fundamental  rights  of  the 
citizen  would  not  interfere  with  the  use  of  the  congressional 
taxing  power  for  any  purposes  related  to  the  common  defense 
and  general  welfare  of  the  nation. 

THE  PROBLEM  OF  OBJECTIVE  CONSTITUTIONALITY 

Thus  far  the  purposes  for  which  Congress  may  use  its  power 
to  tax  have  been  considered  in  the  light  of  general  constitutional 

92  After  adverting  to  the  implied   restriction  that   Congress  may  not 
tax  the  states  or  their  instrumentalities,  Cooley  states :  "With  the  excep- 
tion of  cases  resting  on  like  or  kindred  reasons  to  those  suggested,  the 
protection   as   against  the  abuse  of  the   federal   power   to   tax  must   be 
looked  for  in  the  good  sense  of  the  representatives  of  the  people,  and  in 
keeping  alive  the  feeling  that  for  all  improper  legislation  they  may  be 
held  to   strict   accountability   by   their    constituents."     Op.    cit,    Atlantic 
Monthly,  Vol.  69,  534.     "In  selecting  objects  of  taxation  we  have  a  right 
to  keep  in  mind,  as  every  Congress  has  kept  in  mind,  the  general  welfare 
of   the  people  of  the  United   States.  The  object  of  taxation  is  revenue. 
The  motive  with  which,  for  one,  I  vote  to  select  this  particular  article  for 
taxation  is  the  interest,  as  I  understand  it,   of  the  people."     Speech  of 
Senator  Spooner  on  Oleomargarine  Tax  Act  of  1902,  Cong.  Rec.,  April 
1,  1902,  Vol.  35,  3506. 

93  "Let  us  concede  that  if  a  case  was  presented  where  the  abuse  of 
the  taxing  power  was  so  extreme  as  to  be  beyond  the  principles  which 
we  have  previously  stated,  and  where  it  was  plain  to  the  judicial  mind 
that  the  power  had  been  called  into  play,  not  for  revenue,  but  solely  for 
the  purpose  of  destroying  rights  which  could  not  be  rightfully  destroyed 
consistently  with  the  principles  of   freedom  and  justice  upon  which  the 
constitution   rests,   that  it  would  be  the  duty  of  the  courts  to  say  that 
such  an  arbitrary  act  was  not  merely  an  abuse  of  a  delegated  power,  but 
was  the  exercise  of  an  authority  not  conferred."    White.  C.  T.  in  McCray 
v.  U.  S.,  (1904)   195   U.  S.  27,  64,  24  S.  C.  R.  769,  49  L.  Ed.  78,  1  Ann. 
Cas.  561. 

94  Loan  Association  v.  Topeka,  supra. 


THE  NATIONAL  POLICE  POWER  273 

principles.  The  questions  discussed  here  have  been  those  which 
each  member  of  Congress  must  settle  in  his  own  mind  before  vot- 
ing for  a  taxing  bill  regarding  which  these  controversies  might 
arise,  since  he  is  bound  by  his  oath  of  office  to  support  the  consti- 
tution. They  have  all  been  concerned  with  the  broad  issue :  Is  the 
use  of  the  taxing  power  for'general  police  purposes  defensible  on 
sound  constitutional  principles?  They  all  relate,  therefore,  to 
what  has  been  aptly  termed  the  problem  of  subjective  consti- 
tutionality.95 

There  remains  to  be  considered  what  may  be  called  the  prob- 
lem of  objective  constitutionality.  Assuming  for  the  sake  of 
argument  that  the  child  labor  tax  or  some  analogous  act  violates 
sound  constitutional  principles,  can  the  Supreme  Court  actually  get 
hold  of  that  unconstitutionality  and  declare  the  tax  null  and  void? 
In  other  words,  is  the  constitutionality  of  the  act  of  such  a  na- 
ture that  the  courts  can  afford  judicial  relief?  For  it  must  be 
borne  in  mind  that  there  are  plenty  of  instances  in  our  constitu- 
tional system  in  which  the  Supreme  Court  is  powerless  to  pre- 
vent even  the  flagrant  violation  of  our  fundamental  law.96  Does 
the  use  by  Congress  of  a  constitutional  power  for  an  unconstitu- 
tional purpose  create  a  case  in  which  the  remedy  for  unconstitu- 
tional action  must  be  political  rather  than  judicial? 

Consideration  of  this  problem  may  well  begin  with  an  exam- 
ination of  the  case  of  McCray  v.  United  States?"1  in  which  in  1904 
the  Supreme  Court  sustained  the  validity  of  the  oleomargarine 
tax  of  1902.  It  was  urged  upon  the  court  in  this  case  that  the 
tax  of  ten  cents  per  pound  upon  colored  oleomargarine  was  not 
designed  to  raise  revenue  but  to  suppress  the  manufacture  of 
the  article  taxed.  Everyone  knew  of  course,  that  this  was  true. 
Such  a  tax  was  alleged  to  be  unconstitutional  because  it  amounted 
to  an  invasion  of  the  reserved  power  of  the  states,  because  it  was 
not  in  itself  a  legitimate  means  of  exercising  the  taxing  power, 
because  of  its  destructive  nature,  and  because  it  amounted  to  a 
deprivation  of  liberty  and  property  rights  which  no  free  govern- 
ment might  destroy. 

The  opinion  of  Mr.  Justice  White  in  the  McCray  case  de- 
clared, first,  that  the  court  could  not  inquire  into  the  motives 

95  Infra,  p.  275. 

98  These  instances  are  those  in  which  the  Court  faces  what  it  has 
called  "political  questions."  See  Black,  op.  cit,  100,  Cooley,  Principles, 
157.  Hall.  op.  cit,  40.  WillouRhby,  op.  cit.,  II,  999. 

9?  (1904)  195  U.  S.  27,  24  S.  C.  R.  769,  49  L.  Ed.  78,  1  Ann.  Cas.  561. 


274  MINNESOTA  LAW  REVIEW 

which  actuated  a  particular  exercise  of  an  admitted  power  of 
Congress.  This  is,  of  course,  familiar  doctrine.98 

"No  instance  is  afforded,"  said  the  court,  "from  the  founda- 
tion of  the  government  where  an  act  which  was  within  a  power 
conferred,  was  declared  to  be  repugnant  to  the  constitution,  be- 
cause it  appeared  to  the  judicial  mind  that  the  particular  exertion 
of  constitutional  power  was  either  unwise  or  unjust.  .  .  . 

"It  is,  however,  argued  if  a  lawful  power  may  be  exerted 
for  an  unlawful  purpose,  and  thus,  by  abusing  the  power,  it  may 
be  made  to  accomplish  a  result  not  intended  by  the  constitution, 
all  limitations  of  power  must  disappear,  and  the  grave  functions 
lodged  in  the  judiciary,  to  confine  all  the  departments  within  the 
authority  conferred  by  the  constitution,  will  be  of  no  avail.  This, 
when  reduced  to  its  last  analysis,  comes  to  this:  that  because 
a  particular  department  of  the  government  may  exert  its  lawful 
powers  with  the  object  or  motive  of  reaching  an  end  not  justified, 
therefore  it  becomes  the  duty  of  the  judiciary  to  restrain  the 
exercise  of  a  lawful  power  wherever  it  seems  to  the  judicial  mind 
that  such  lawful  power  has  been  abused.  But  this  reduces  itself 
to  the  contention  that,  under  our  constitutional  system,  the  abuse 
of  one  department  of  the  government  of  its  lawful  powers  is  to 
be  corrected  by  the  abuse  of  its  powers  by  another  department." 

In  the  second  place,  the  court  refused  to  invalidate  the  act 
on  the  ground  that  the  results  of  the  law,  irrespective  of  its  form 
or  the  motives  of  its  framers,  were  such  as  to  indicate  an  uncon- 
stitutional use  of  the  taxing  power.  The  court  said : 

"Undoubtedly,  in  determining  whether  a  particular  act  is 
within  a  granted  power,  its  scope  and  effect  is  to  be  considered. 
Applying  this  rule  to  the  acts  assailed,  it  is  self-evident  that  on 
their  face  they  levy  an  excise  tax.  That  being  their  necessary 
scope  and  operation,  it  follows  that  the  acts  are  within  the  grant 
of  power.  The  argument  to  the  contrary  rests  on  the  proposition 
that,  although  the  tax  be  within  the  power,  as  enforcing  it  will 
destroy  or  restrict  the  manufacture  of  artificially  colored  oleo- 
margarine, therefore  the  power  to  levy  the  tax  did  not  obtain. 
This,  however,  is  but  to  say  that  the  question  of  power  depends, 
not  on  the  authority  conferred  by  the  constitution,  but  upon  what 
may  be  the  consequence  arising  from  the  exercise  of  the  lawful 
authority." 

The  upshot  of  the  McCray  case,  then,  seems  to  be  that  the 
Supreme  Court  will  not  invalidate  any  congressional  act  which 
"on  its  face"  levies  a  tax,  no  matter  what  the  motive  or  results 

98  Black,  op.  cit.,  69 ;  Cooley,  Constitutional  Limitations,  257 ;  Story, 
op.  cit.,  II,  sec.  1090;  Willoughby,  op.  cit,  I,  18;  United  States  v.  Des 
Moines  Nav.  &  R.  Co.,  (1891)  142  U.  S.  510.  544,  35  L.  Ed.  1099,  12  S.  C. 
R.  308;  Weber  v.  Freed,  (1915)  239  U.  S.  325,  330,  60  L.  Ed.  308,  310,  36 
S.  C.  R.  311.  Ann.  Cas.  1916C  317;  Dakota  Cent.  Teleph.  Co.  v.  South 
Dakota,  (1919)  250  U.  S.  163,  194,  63  L.  Ed.  910,  924,  39  S.  C.  R.  507. 


THE  NATIONAL  POLICE  POWER  275 

of  that  act  may  be.  This  is  all  that  the  case  actually  decided. 
The  court  suggests  by  way  of  dictum  that  there  may  be  attempts 
by  Congress  to  exercise  the  taxing  power  which  are  not  "on  their 
face"  acts  of  taxation  and  which  not  only  amount  to  "an  abuse 
of  delegated  power,  but  the  exercise  of  an  authority  not  con- 
ferred." But- it  seems  clear  that  what  Mr.  Justice  White  had  in 
mind  was  the  possibility  of  the  use  by  Congress  of  its  taxing 
power  for  the  destruction  of  fundamental  private  rights." 

This  raises  the  interesting  question,  when,  if  ever,  does  a  law 
purporting  to  be  an  exercise  by  Congress  of  its  power  to  tax 
cease  to  be  a  tax  "on  its  face,"  so  as  to  justify  the  court  in  de- 
claring it  null  and  void.100  The  answer  to  this  question  is  not  to 
be  found  in  Mr.  Justice  White's  opinion  in  the  McCray  case, 
but  some  light  upon  the  meaning  which  he  attached  to  the  phrase 
"on  its  face"  may  be  gleaned  from  a  further  perusal  of  his  re- 
marks in  the  United  States  Senate  while  he  was  a  member  of 
that  body. 

In  the  first  place,  it  is  apparent  from  the  statements  of  Sen- 
ator White  that  a  law  purporting  to  be  a  tax  law  does  not  in  his 
judgment  necessarily  cease  to  be  a  tax  "on  its  face"  and  thereby 
fall  under  the  judicial  ban  even  when  as  a  member  of  Congress 
he  would  be  obliged  to  vote  against  the  bill  as  unconstitutional 
because  he  knows  the  purpose  of  the  tax  to  be  not  revenue  but 
prohibition  or  regulation.101  He  cannot  necessarily  know  and 
act  upon  as  a  judge  the  things  which  he  knows  as  a  legislator. 

"It  is  perfectly  self-evident  when  a  bill,  which  is  a  revenue 
bill,  comes  to  me  for  consideration,  as  to  whether  I  will  vote  for 
it  or  not,  it  may  be  to  me — if  I  may  be  allowed  to  use  the  word, 
a  philosophical  word — subjectively  unconstitutional  per  se,  and 
I  may  not  vote  for  it  as  constitutional,  because  I  know  that, 
although  it  is  a  revenue  bill,  there  is  a  purpose  of  destruction 
and  prohibition  contained  in  it.  But  when  it  comes  to  the  court, 
the  court  can  only  look  at  it  objectively.  The.  court  must  look 
at  its  provisions,  and  if  on  its  face  it  is  a  revenue  bill,  if  on  its 
face  it  be  for  the  purpose  of  raising  revenue,  the  court  will  say 
that  it  cannot  consider  the  motive,  but  must  decree  its  enforce- 
ment. .  .  . 

90  For  the  full  context  see  note  93,  supra. 

100  It  is  interesting  to  note  that  Cooley  also  uses  this  phrase  "on  its 
face"  in  discussing   the   validity   of   taxing  acts.     He   says :    Practically, 
therefore,   a   law   purporting   to   levy  taxes,   and   not  being  on    its    face 
subject  to  objection,  is   unassailable,   whatever  may  have  been  the  real 
purpose."     Principles  of  Constitutional  Law,  p.  58. 

101  It  is  clear,  of  course,  that  Senator  White  adhered  to  this  narrower 
view  of  the  proper  purposes  of  federal  taxation.    Supra,  p.  264. 


276  MINNESOTA  LAW  REVIEW 

"If  I  were  the  Executive  or  a  judge  and  the  bill  came  to  me, 
then  having  passed  out  of  this  sphere  and  into  another  sphere 
where  motives  could  not  enter,  I  should  say  the  sole  question 
presented  to  me  was,  does  it  raise  revenue  on  its  face,  and  if  so, 
I  would  hold  it  constitutional."102 

But  in  the  second  place,  if  a  judge  is  convinced  from  a  study, 
not  of  the  congressional  debates,  but  of  the  provisions  of  the 
taxing  measure  itself,  that  it  cannot  in  practical  effect  raise  any 
revenue,  but  must  of  necessity  result  in  regulation  or  destruction 
of  things  outside  congressional  authority,  he  may  then  conclude 
that  it  is  not  a  tax  law  "on  its  face"  and  may  hold  it  unconsti- 
tutional. This  was  Senator  White's  attitude  toward  the  destruc- 
tive taxes  proposed  to  be  levied  upon  cotton  and  grain  futures. 
He  declared  that: 

"On  the  very  face  of  the  bill  not  even  a  pretext  of  taxation 
can  be  found.  By  the  very  terms  of  the  bill  no  tax  can  result 
from  its  provisions.  .  .  . 

"It  is  perfectly  true  that  in  two  or  three  cases  the  Supreme 
Court  of  the  United  States  has  said  that  where  on  the  face  of 
a  statute  there  was  the  exercise  of  taxation,  as  the  statute  was  on 
its  face  a  taxing  statute,  the  court  would  not  destroy  the  face 
of  the  statute  with  the  sponge  of  the  motives  which  may  have 
actuated  the  members  who  passed  it.  Is  that  the  case  here? 
Where  the  face  of  the  statute  shows  no  tax,  where  the  face  of 
the  statute  itself  eliminates  all  human  possibility  of  the  exercise 
of  the  taxing  power  for  revenue,  then  I  say  the  mission  of  juris- 
diction is  given  to  the  courts  of  this  land  to  brush  that  statute 
away  for  its  flagrant  and  open  violation  of  the  constitution.  .  .  . 
If  the  usurpation  is  clear  on  the  face  of  the  act,  if  the  act  itself 
shows  the  usurpation,  the  power  exists  in  the  Supreme  Court  to 
prevent  the  usurpation."103 

In  short,  when  the  court  concludes  from  a  scrutiny  of  the  act 
itself  that  the  act  cannot  in  effect  produce  revenue,  it  need  not 

102  Cong.  Rec.,  July  21,  1892,  Vol.  23,  6518-6519. 

Compare  with  this  the  following  statement  by  President  Cleveland  in 
his  message  accompanying  his  approval  of  the  Oleomargarine  Tax  Act  of 
1886:  "It  has  been  urged  as  an  objection  to  this  measure  that  while  pur- 
porting to  be  legislation  for  revenue  its  real  purpose  is  to  destroy,  by  the 
use  of  the  taxing  power,  one  industry  of  our  people  for  the  protection 
and  benefit  of  another. 

"If  entitled  to  indulge  in  such  a  suspicion  as  a  basis  of  official  action 
in  this  case,  and  if  entirely  satisfied  that  the  consequences  indicated  would 
ensue.  I  should  doubtless  feel  constrained  to  interpose  executive  dissent. 

"But  I  do  not  feel  called  upon  to  interpret  the  motives  of  Congress 
otherwise  than  by  the  apparent  character  of  the  bill  which  has  been  pre- 
sented to  me,  and  I  am  convinced  that  the  taxes  which  it  creates  cannot 
possibly  destroy  the  open  and  legitimate  manufacture  and  sale  of  the 
thing  upon  which  it  is  levied."  Richardson.  Messages  and  Papers  of  the 
President.  VIII,  427. 

103  Cong.  Rec..  July  21,  1892,  Vol.  23,  6516. 


THE  NATIONAL  POLICE  POWER  277 

hesitate,  according  to  Senator  White,  to  declare  that  Congress  has 
tried  to  wield  an  authority  which  it  does  not  possess  and  that 
such  an  exercise  of  the  taxing  power  is  "objectively"  unconsti- 
tutional.104 

Senator  White's  standard  for  judging  the  objective  consti- 
tutionality of  a  congressional  use  of  the  taxing  power  has  much 
more  than  an  academic  interest,  first  because  his  present  position 
as  Chief  Justice  of  the  United  States  gives  him  an  opportunity  to 
apply  it  or  urge  its  application  in  the  forthcoming  decision  on 
the  validity  of  the  child  labor  tax,  and  also  because  he  has  already 
had  one  opportunity  to  apply  it,  namely,  in  the  McCray  case, 
and  it  is  therefore  possible  to  observe  its  nature  and  limitations. 
The  fact  that  the  oleomargarine  tax  of  1902  was  under  the  cir- 
cumstances found  objectively  constitutional  throws  some  light 
upon  the  true  value  of  Senator  White's  test  as  a  check  upon  the 
use  of  the  federal  taxing  power  for  police  purposes.  In  com- 
menting in  the  Senate  in  1892  upon  the  oleomargarine  tax  of 
1886,  Senator  White  declared  that  when  this  measure  was  intro- 
duced into  Congress  it  provided  for  a  "prohibitive  tax"  but  that 
in  spite  of  the  pressure  for  its  passage  it  was  too  much  for  the 
"constitutional  stomachs"  of  some  of  the  members  and  it  was 
accordingly  reduced  to  a  revenue-producing  capacity.105  The  im- 
plication is  perfectly  clear  that  Senator  White  regarded  this 
"prohibitive"  tax  as  one  which  was  objectively  unconstitutional; 
while  the  tax  in  its  reduced  form  was  objectively  constitutional. 
Now  this  objectively  unconstitutional  tax  on  oleomargarine  was  a 
tax  of  ten  cents  per  pound.  In  1904,  however,  when  as  associate 
justice  of  the  Supreme  Court,  Mr.  White  wrote  the  opinion  in 

104  "Now  let  us  reason  out  the  consequences,  if  it  be  not  true.    If  this 
be  not  true,  then  the  beautiful  system  by  which,  as  1  said  just  now,  all 
the  departments  of  the  government  move  in  a  common  orbit,  vanishes 
out   of   the  sidereal   universe  of  government   and  passes   into   confusion 
and   chaos.     The   precedents   are  against  it.     The  power  which  the  Su- 
preme Court  of  the  United  States  exercises  in  the  review  of  statutes  is 
like  unto  the  power  exercised  by  the  supreme  courts  of  all  the  states.    The 
books  are  full  of  cases  in  the  state  courts  drawing  the  distinction  which 
I  'have  made.     In  the  Topeka  case  it   is   drawn  in  plain   words   by  the 
Supreme  Court  of  the  United  States.     There  a  government  appropriated 
a  sum  of  money,  declaring  it  to  be  for  a  public  purpose.     The  case  went 
to  the  Supreme  Court  of  the  United  States  and  it  said  your  motive  and 
your  purpose  cannot  be  inquired  into.     That  is  removed  beyond  the  do- 
main of  controversy  or  question.     But  where  you  have  called  the  statute 
one  thing  and  the  very  terms  of  the  statute  indicate  another  thing,  and 
that  other  thing  is  outside  the  powers   of  government,  then   it  is  not  a 
statute  at  all,  but  it  is  a  violation  of  authority  and  we  strike  it  from  the 
statute  books."    Cong.  Rec.,  July  21,  1897,  Vol.  23,  6516. 

105  Cong.  Rec.,  July  21,  1892,  Vol.  23,  6518. 


278  MINNESOTA  LAW  REVIEW 

the  McCray  case,  the  same  tax  of  ten  cents  per  pound  on  colored 
oleomargarine  seemed  to  him  "on  its  face"  to  be  a  revenue  meas- 
ure and  therefore  objectively  constitutional.  A  tax  objectively 
unconstitutional  in  1886  turns  out  to  be  objectively  constitutional 
in  1904.10G  One  is  forced  to  the  conclusion  that  he  found  as 
justice  of  the  Supreme  Court  insurmountable  difficulties  in  the 
way  of  declaring  "objectively  unconstitutional"  a  taxing  statute 
which  as  a  legislator  he  had  felt  convinced  should  fall  under  the 
judicial  ban. 

It  is  not  at  all  surprising  that  the  Supreme  Court,  even  had 
it  been  unanimously  inclined  to  do  so,  should  have  found  it 
exceedingly  difficult  to  declare  unconstitutional  a  law  purporting 
to  be  an  exercise  by  Congress  of  its  delegated  power  of  taxation 
because  it  did  not  "on  its  face"  levy  a  tax.  In  addition  to  the 
general  presumption  of  constitutionality  which  attaches  to  any 
act  of  the  legislature  there  is  added,  unless  Congress  is  unusually 
careless,  the  presumption  arising  from  the  legislative  label  declar- 
ing the  act  to  be  for  the  raising  of  revenue.107  It  is  necessary  also 
for  the  court  to  give  full  weight  to  the  unquestioned  freedom 
of  Congress  to  select  the  subjects  of  lawful  taxation,108  and, 
having  selected  them,  to  impose  rates  which  are  restricted  only 
by  legislative  discretion.109  The  court  must  also  exercise 
sufficient  self-control  to  rule  out  of  consideration  all  that  it  may 
know  about  the  purposes  and  motives  actuating  the  legislators 
responsible  for  passing  the  law.110  It  is  not  at  liberty  to  decide 

ice  There  is  a  theory  on  which  the  Act  of  1886  can  be  distinguished 
from  the  Act  of  1902.  The  earlier  law  levied  a  uniform  tax  upon  all 
oleomargarine.  The  Act  of  1902  levied  a  tax  of  one-quarter  of  a  cent 
per  pound  on  uncolored  oleomargarine  and  a  tax  of  ten  cents  per  pound 
on  that  which  was  colored.  It  was  argued  in  Congress  that  the  destruc- 
tive tax  upon  the  colored  product  was  to  aid  the  government  in  the  en- 
forcement of  the  revenue-producing  tax  on  the  uncolored  product  by 
preventing  a  deception  which  would  facilitate  tax  evasion.  See  remarks 
of  Senator  Hoar,  Cong.  Rec.,  Mar.  26,  1902,  Vol.  35,  3282,  and  of  Senator 
Spooner,  ibid  3506.  This  is  the  theory  upon  which  the  Supreme  Court  up- 
held the  Harrison  Anti-Narcotic  Act  in  the  recent  case  of  the  United  States 
v.  Doremus,  (1919)  249  U.S.  86,  63  L.  Ed.—,  39  S.  C.  R.  214.  There  is  no 
evidence,  however,  that  Mr.  Justice  White  attached  any  significance  to  this 
point  when  writing  his  opinion  in  the  McCray  case. 

107  The  entire  statute  was  entitled  "An  Act  to  Provide  Revenue  and 
For   Other   Purposes ;"   the   section   relating  to  child   labor  was   entitled 
"Tax  on  the  Employment  of   Child  Labor." 

108  Treat  v.  White,   (1900)   181  U.  S.  264,  45  L.  Ed.  853,  21  S.  C.  R. 
611  ;  Patton  v.  Brady,  (1902)  184  U.  S.  608,  46  L.  Ed.  713,  22  S.  C.  R.  493. 
See  Cooley,  Principles,  p.  57 ;  Cooley,  Taxation,  I,  179-180. 

109  Marshall    established    this    doctrine    in    McCulloch    v.    Maryland. 
Knowlton  v.  Moore,  (1900)  187  U.  S.  41,  58,  20  S.  C.  R.  747,  44  L.  Ed.  969. 

110  See  note  98,  supra. 


THE  NATIONAL  POLICE  POWER  279 

whether  or  not  "on  its  face"  the  act  raises  revenue  by  finding  out 
whether  or  not,  when  set  in  operation,  it  actually  does  raise  any 
revenue.111  Probably  in  most  cases  also  such  evidence  would  be 
lacking  at  the  time  the  court  needed  it,112  and  such  evidence 
might  be  of  very  questionable  reliability  as  a  guide  to  the 
court.113  If  the  court  is  able  thus  to  orient  itself  sufficiently  and 
to  bring  to  bear  on  its  problem  the  mental  complex  which  should 
result  from  the  considerations  above  noted,  it  must  then  address 
itself  to  the  problem  whether  the  provisions  of  the  statute  which 
it  is  scrutinizing  are,  in  and  of  themselves,  of  such  a  character 
as  to  leave  no  reasonable  doubt  that  the  act  is  not  an  act  to  raise 
revenue.  To  make  this  judicial  guess  as  to  what  the  statute  was 
probably  meant  to  accomplish  and  what  it  probably  will  accom- 
plish, the  court  must  deal  with  factors  which  are  not  only  highly 
speculative  in  character  but  have  an  awkward  tendency  to  fluc- 
tuate. Whether  an  alleged  revenue  law  may  be  reasonably  pre- 
sumed to  produce  revenue  will  depend  upon  circumstances,  and 
circumstances  may  change.  The  measure  of  constitutionality 
might  thus  tend  to  shift.114  In  short,  in  applying  this  test  of  ob- 
jective unconstitutionally,  the  court  will  properly  feel  that  it 
must  be  more  than  usually  sure  of  its  ground  in  respect  to  a 

111  See.   paragraph,  quoted    from   Mr.   Justice   White's   opinion    in  the 
McCray  case,  note  93  supra. 

112  As  when  the  question  of  the  validity  of  the  taxing  act  is  raised  in 
an  action   seeking  an  injunction  to  restrain  enforcement.     This  was  the 
nature  of  the  proceeding  in  the  United  States  district  court  in  which  the 
child  labor  tax  has  been  held  invalid.     Supra,  note  11.     The  court  might 
be  compelled  to  determine  this  question  before  the  law  had  been   fairly 
put  into  operation. 

113  It  is,  of  course,  well  known  that  even  fiscal  experts  are  frequently 
deceived  as  to  the  actual   revenue-bearing  capacity  of   a  particular  tax. 
Furthermore,    interested    parties    might   secure   the   payment    for    a  tem- 
porary period  even  of  prohibitive  taxes  in  order  to  provide  evidence  of 
the  ability  of  the  tax  to  produce  some  revenue. 

114  This  was  pointed  out  in  humorous  fashion  by  Mr.  Hepburn  in  the 
debate   in  the  House  on  the  oleomargarine  tax   of   1886 :   "In  the  year 
1887,  when  the  effect  of  the  bill,  we  will  suppose,  is  to  prohibit  the  manu- 
facture  of   oleomargarine,   the   bill  becomes   unconstitutional.      But    sup- 
pose the  next  year  on  account  of  the  withdrawal  of  200,000,000  pounds  of 
this  spurious  butter  that  is  sold,  and  used  as  butter,  leaving  on  the  market 
1,000,000  pounds  of  good  butter,  the  price  of  butter  is  enhanced,  going  up 
to  25c  or  30c  a  pound.    The  manufacturer  of  the  bogus  article  can  then 
compete,  if  he  can  make  the  article  and  pay  the  tax,  so  that  there  will 
be  a  revenue  of  $20,000,000  to  the  government.    Then  the  law  becomes  a 
constitutional  measure !     So  that  according  to  the  gentleman's  argument 
the  bill  may  be  constitutional  in  1886,  unconstitutional  in  1887,  and  again 
become  constitutional  in  1888.    The  bill  is  not  constitutional  or  unconsti- 
tutional  because  of   the  nature   of   the  enactments   that   it  contains,  but 
because  of  the  price  of  butter!"     (Laughter.)     Cong.  Rec.,  Vol.  17,  4901. 


280  MINNESOTA  LAW  REVIEW 

problem  so  vague  and  baffling  in  character  that  sureness  of 
ground  will  frequently  be  well  nigh  unattainable. 

The  writer  ventures  the  opinion  that  should  the  majority  of 
the  Supreme  Court  adopt  either  the  revenue  only  theory  of 
federal  taxation  or  Chief  Justice  White's  theory  that  the  purposes 
for  which  Congress  may  tax  are  limited  by  the  reserved  powers 
of  the  states,  it  would  find  the  problem  of  applying  any  satis- 
factory test  of  objective  constitutionality  for  the  purpose  of 
enforcing  such  limitations  so  fraught  with  difficulties  that  those 
limitations  would  practically  cease  to  function.  Congress  would 
find  itself  possessed  in  reality  of  practically  the  same  broad  pow- 
ers of  taxation  which  the  states  and  other  sovereign  governments 
enjoy.  Such  power  would  continue  to  be  subject  to  all  the 
express  limitations  found  in  the  constitution;  it  would  be  subject 
to  the  implied  limitation  that  the  revenue  raised  must  be  for  a 
public  purpose;  it  would  be  subject  to  the  implied  limitation  that 
it  must  not  burden  the  governments  or  functions  of  the  states ; 
it  would  be  subject  to  the  implied  limitation  that  it  must  not 
infringe  the  individual  rights  which  under  a  free  government  are 
inviolable.  It  seems  exceedingly  doubtful  that  any  instance  will 
arise  in  which  a  law  passed  by  Congress  in  exercise  of  its  power 
to  tax  which  was  safely  within  all  these  express  and  implied 
restrictions  will  be  declared  null  and  void  by  the  Supreme  Court 
because  "on  its  face"  it  does  not  "levy  a  tax."  If  Senator  White's 
standard  of  objective  constitutionality  failed  to  function  in  the 
McCray  case,  it  is  not  easy  to  imagine  the  kind  of  taxing  statute 
to  which  it  would  apply.  If  it  was  inapplicable  to  the  oleomar- 
garine tax  of  1902  it  is  hard  to  discover  its  applicability  to  the 
child  labor  tax  of  1919. 

By  way  of  summary  and  conclusion  it  may  be  suggested  that 
the  nature  of  the  purposes  for  which  Congress  may  properly 
use  its  power  to  tax  is  a  question  on  which  there  is  now  and 
has  always  been  a  wide  difference  of  opinion.  There  is  plenty 
of  respectable  authority  for  the  support  of  each  one  of  the  three 
views  discussed.  It  may  be  noted  that  Congress  has  proceeded 
upon  the  theory  that  it  may  use  its  power  to  tax  for  the  accom- 
plishment of  any  purposes  which  will  aid  the  common  defense 
and  general  welfare.  It  is  apparent  that  the  Supreme  Court  has 
never  put  its  official  sanction  upon  any  one  of  the  three  theories 
of  federal  taxation  to  the  exclusion  of  the  others.  It  seems 
probable  that  the  narrower  and  more  restricted  conceptions  of 


THE  NATIONAL  POLICE  POWER  281 

the  taxing  power  would,  from  the  standpoint  of  the  practical 
problem  of  judicial  construction,  prove  incapable  of  satisfactory 
enforcement.  There  is  every  indication  that  Congress,  if  it  is 
sufficiently  circumspect,  may  continue  to  exercise  a  liberal  police 
power  through  the  medium  of  regulatory  and  destructive  taxes 
without  fear  of  judicial  interference. 

But  if  the  child  labor  tax  is  upheld,  either  because  the  Su- 
preme Court  decides  upon  broad  grounds  that  the  law  is  consti- 
tutional or  because  it  finds  its  unconstitutionality  inaccessible, 
Congress  will  be  justified  in  feeling  that  it  has  been  substan- 
tially fortified  in  its  position  that  it  may  use  its  power  to  tax  as 
an  instrumentality  for  the  exercise  of  a  broad  national  police 
power.  It  will  be  reasonable  to  look  for  further  and  more  far- 
reaching  measures  seeking  by  means  of  taxation  to  regulate 
conditions  and  suppress  evils  over  which  Congress  has  no  direct 
authority.* 

*This  series  of  articles  will  be  concluded  by  an  article,  "The  National 
Police  Power  under  the  Postal  Power." 


402  MINNESOTA  LAW  REVIEW 


NATIONAL    POLICE    POWER    UNDER    THE    POSTAL 
CLAUSE  OF  THE  CONSTITUTION 

IF  ONE  were  asked  to  explain  and  illustrate  the  doctrine  of 
implied  powers  as  it  has  functioned  in  the  development  of  our 
constitutional  law,  there  would  probably  be  no  easier  way  to  do 
it  than  to  point  to  the  enormous  expansion  of  the  postal  power 
of  Congress.1  The  clause  in  the  federal  constitution  which  grants 
to  Congress  the  power  "to  establish  Post  Offices  and  Post 
Roads"2  was  inserted  there  almost  without  discussion.3  It  seems 
to  have  appeared  entirely  innocuous  even  to  the  most  suspicious 
and  skeptical  of  those  who  feared  that  the  new  government  would 
dangerously  expand  its  powers  at  the  expense  of  the  states  and 
the  individual.*  And  yet  that  government  had  hardly  been  set 
in  operation  before  this  brief  grant  of  authority  began  to  be 
subjected  to  a  liberal  and  expansive  construction  under  which 
our  postal  system  has  come  to  be  our  most  picturesque  symbol 
of  the  length  and  breadth  and  strength  of  national  authority.5 

1  The  subject  of  the  expansion  of  the  postal  power  of  Congress  has 
been   fully  treated  in  a    very    excellent    monograph    by  Lindsay  Rogers 
entitled  "The  Postal  Power  of  Congress,"  Johns  Hopkins  University  Stu- 
dies   in   Historical   and   Political    Science,    1916.     The  writer   has  drawn 
freely  upon  Professor  Rogers'  researches  in  the  preparation  of  this  article. 

2  Art.  I,  Sec.  8,  Cl.  7. 

3  In  its  present  form  it  was  not  debated  at  all.     In  the  New  Jersey 
Plan  introduced  into  the  Convention  by  Paterson  on  June  15  it  was  pro- 
posed to  allow  Congress  to  raise  revenue,  among  other  ways,  "by  a  post- 
age on  all  letters  or  packages  passing  through  the  general  Post  Office." 
Farrand,  Records  of  the  Federal  Convention,  I,  243.     The  history  of  the 
postal  clause  in  the  convention  is  traced  in  Rogers,  op.  cit.,  23.    It  throws 
no  light  on  the  present  problem. 

4  Madison,  in  the  42nd  number  of  the  Federalist,  dismissed  the  subject 
with  the  statement,  "The  power  of  establishing  post  roads,  must,  in  every 
view,  be  a  harmless  power;  and  may,  perhaps,  by  judicious  management, 
become  productive  of  great  conveniency." 

5  "Under  that  six-word  grant  of  power  the  great  postal  system  of  this 
country  has  been  built  up,  involving  an  annual  revenue  and  expenditure  of 
over   five   hundred   millions   of   dollars,   the   maintenance   of   60,000  post 
offices,  with  hundreds  of  thousands  of  employees,  the  carriage  of  more 
than  fifteen  billions  of  pieces  of  mail  matter  per  year,  weighing  over  two 
billions  of  pounds,  the  incorporation  of  railroads,  the  establishment  of  the 
rural  free  delivery  system,  the  money  order  system,  by  which  more  than 
half  a  billion  of  dollars  a  year  is  transmitted  from  person  to  person,  the 
postal  savings  bank,  the  parcel  post,  an  aeroplane  mail  service,  the  sup- 
pression of  lotteries,  and  a  most  efficient  suppression  of   fraudulent  and 


THE  NATIONAL  POLICE  POWER  403 

This  expansion  of  national  authority  under  the  postal  power 
given  to  Congress  has  proceeded  along  two  distinct  but  related 
lines.  There  has  been,  in  the  first  place,  a  striking  expansion  of 
what  may  be  called  the  collectivist  or  socialistic  functions  carried 
on  through  the  post  office.6  Here  may  be  mentioned  such  enter- 
prises as  the  postal  money  order  system,  the  postal  savings  bank, 
the  parcel  post,  and  the  use  of  the  post  office  as  an  agency  of 
publicity  to  aid  in  the  marketing  of  farm  products  and  in  solving 
the  problem  of  unemployment.  In  some  countries,  of  course,  the 
scope  of  the  collectivist  functions  delegated  to  the  post  office 
is  much  broader  than  in  the  United  States;  but  it  seems  highly 
probable  that  the  American  postal  system  has  by  no  means 
reached  the  limit  of  its  growth  as  an  agency  for  positive  service 
to  the  people.7  This  interesting  subject  is  not,  however,  the  one 
under  consideration  in  this  article.  In  the  second  place,  national 
authority  under  the  postal  power  has  developed  in  striking  meas- 
ure along  the  line  of  repression  and  regulation  effected  by  the 
denial  or  forfeiture  of  postal  privileges.  Acting  on  the  theory 
that  the  hand  which  bestows  privileges  may  also  withhold  them, 
Congress  has  wielded  the  power  of  exclusion  from  the  mails 
with  a  vigorous  arm.  It  has  refused  to  carry  in  the  mails  a  long 
list  of  articles  injurious  in  themselves  or  destined  for  injurious 
uses,  has  denied  the  use  of  postal  privileges  in  aid  of  fraudulent 
transactions,  and  has  seriously  contemplated  at  times  denying 
entirely  all  mail  privileges  as  a  penalty  for  certain  acts  on  the 
part  of  the  corporation  or  the  individual  which  it  would  have  no 
direct  authority  to  punish.  Congress  has  in  this  way  generously 
extended  the  scope  of  its  authority  over  many  subjects  which 
the  framers  of  the  constitution  undoubtedly  assumed  they  had 

criminal  schemes,  impossible  to  be  reached  in  any  other  way."  Read  into 
the  opinion  of  the  Supreme  Court  from  the  brief  for  the  government  in 
Lewis  Publishing  Co.  v.  Morgan  (1912)  229  U.  S.  288,  57  L.  Ed.  1190, 
33  S.  C.  R.  867. 

6  Rogers,  op  cit.,  33. 

7  Possible  expansion  of  postal  functions  is  suggested  by  the  types  of 
service  rendered  by  the  post  office  during  the  war  as  fiscal  agent  for  the 
government  through  the  handling  of  War  Savings  Stamps  as  well  as  other 
miscellaneous  activities.     The  war-time  control  of  the  telegraph  and  tele- 
phone systems  by  the  postmaster  general  was  effected  as  an  exercise  of 
the  war  power,  and  no  apparent  effort  was  made  to  correlate  the  activi- 
ties of  those  systems  with  those  of  the  post  office,  as  is  done  in   some 
European  countries.    Whether  Congress  could,  merely  as  an  exercise  of 
the  postal  power,  acquire  all  the  telegraph  lines  is  a  question  which  was 
referred  to  but  left  open  by  the  Supreme  Court  in  the  case  of  Pensacola 
Telegraph  Co.  v.  Western  Union  Telegraph  Co.,    (1877)    96  U.   S.   1,  24 
L.  Ed.  708. 


404  MINNESOTA  LAW  REVIEW 

succeeded  in  leaving  to  the  exclusive  jurisdiction  of  the  states. 
In  short,  the  national  government  has  managed  to  make  the 
seemingly  matter-of-fact  and  innocent  grant  of  authority  to 
establish  post  offices  and  post  roads  serve  as  a  "constitutional 
peg"  upon  which  to  hang  a  very  substantial  federal  police  power 
which  may  be  employed  to  regulate  and  protect  the  national 
safety,  good  order,  and  morals.  The  postal  power,  therefore, 
forms  a  very  important  adjunct  to  the  power  to  regulate  com- 
merce,8 and  to  tax,9  the  three  powers  building  up  both  by  direc- 
tion and  indirection  what,  for  want  of  a  better  term,  may  be  called 
the  police  power  of  the  national  government.  It  is  the  purpose 
of  this  article  to  trace  the  various  lines  along  which  this  national 
police  power  has  developed  under  the  postal  clause  of  the  con- 
stitution, to  examine  the  conflicting  views  regarding  the  constitu- 
tional propriety  of  that  development,  and  to  determine,  if  possible, 
what  are  the  true  limits  of  the  police  power  so  derived. 

The  problem  under  consideration  may  be  conveniently  treated 
under  four  principal  topics :  ( 1 )  First,  there  are  police  regula- 
tions which  Congress  has  enacted  to  protect  the  safety  and 

'   efficiency  of  the  postal  system.     Here  may  be  placed  such  laws 

as  those  excluding  poisons  and  explosives  from  the  mails.    (2) 

Second,  there  are  those  police  regulations  enacted  to  prevent  the 

'postal  system  from  being  used  for  purposes  which  are  injurious 

'  to  the  public  welfare  or  to  encourage  such  uses  of  the  postal 
system  as  are  beneficial  to  the  public  welfare.  The  fraud  order 
legislation  and  the  obscene  literature  acts  will  fall  into  this  group. 
(3)  Third,  may  be  mentioned  those  regulations  which  deny  the 
right  to  use  the  mails  for  the  purpose  of  violating  or  evading 
the  laws  of  the  states.  The  act  forbidding  the  mailing  of  liquor 
advertisements  into  prohibition  states  exemplifies  this  type  of 
statute.  (4)  Finally,  there  are  proposals  that  conformity  to 
general  police  regulations  be  made  the  price  of  the  enjoyment 
of  postal  privileges.  Here  would  be  classed  the  recent  proposal 
to  deny  the  privileges  of  the  United  States  mails  to  all  persons 
employing  child  labor.  Each  of  these  types  of  police  regulation 
under  the  postal  power  may  be  briefly  examined. 

8  See    Cushman,    The    National    Police    Power    under    the    Commerce 
Clause  of  the  Constitution,   (1919)   3  MINNESOTA  LAW  REVIEW  289,  381, 
452. 

9  See  Cushman,  The  National  Police  Power  under  the  Taxing  Clause 
of  the  Constitution,  (1920)  4  MINNESOTA  LAW  REVIEW  247. 


THE  NATIONAL  POLICE  POWER  4Q5 

I.     POLICE  REGULATIONS  TO  PROTECT  THE  SAFETY  AND 
EFFICIENCY  OF  THE  MAILS 

The  right  of  Congress  to  pass  such  laws  as  are  reasonably 
designed  to  protect  the  safety  and  efficiency  of  the  postal  system 
has  at  no  time  been  seriously  questioned,  and  is  at  present  not 
questioned  at  all.  Congress  has  been  expressly  granted  the  power 
to  establish  post  offices ;  and  it  would  be  ridiculous  to  allege  that 
the  power  to  establish  a  governmental  agency  did  not  of  necessity 
carry  with  it  the  power  to  preserve  and  protect  it  when  once 
established.10  Congress  has,  in  fact,  exercised  such  power  ever 
since  our  national  postal  system  was  created.  The  most  obvious 
and  natural  form  of  postal  protection  has  been,  of  course,  the 
enactment  of  laws  punishing  various  acts  which  are  criminal  in 
themselves.  Some  twenty  sections  of  the  United  States  Criminal 
Code11  are  devoted  to  such  offenses  as  robbing,  destroying,  or 
obstructing  the  mails,  injuring  mail  property,  counterfeiting 
money  orders  and  stamps,  or  in  any  way  defrauding  the  post 
office.12  But  a  consideration  of  these  measures  would  not  prop- 
erly be  included  in  a  discussion  of  the  national  police  power13 
even  if  they  raised,  as  they  do  not,  any  interesting  or  important 
questions  of  constitutional  construction.  There  are,  however, 
two  types  of  legislation  which  Congress  has  passed  for  protecting 
the  mail  service  and  promoting  its  efficiency  which  may  be  classi- 
fied as  police  regulations  and  upon  which  brief  comment  may  be 
made.  The  first  comprises  the  enactments  designed  to  make  the 
postal  service  a  government  monopoly;  the  second  includes  the 
laws  excluding  from  the  mails  things  which  would  imperil  or 

10  In  developing  his  doctrine  of  implied  powers  Marshall  used  what 
he  thought  must  be  regarded  as  an  entirely  obvious  illustration,  the  right 
of  Congress  to  protect  the  post  office.  He  said :  "Take,  for  example  the 
power  to  establish  post  offices  and  post  roads.  This  power  is  executed 
by  the  single  act  of  making  the  establishment.  But  from  this  has  been 
inferred  the  power  and  duty  of  carrying  the  mail  along  the  post  road 
and  from  one  post  office  to  another.  And,  from  this  implied  power,  has 
again  been  inferred  the  right  to  punish  those  who  steal  letters  from  the 
post  office,  or  rob  the  mail.  It  may  be  said,  with  some  plausibility,  that 
the  right  to  carry  the  mail,  and  to  punish  those  who  rob  it,  is  not  indis- 
pensably necessary  to  the  establishment  of  a  post  office  and  post  road. 
This  right  is,  indeed,  essential  to  the  beneficial  exercise  of  the  power,  but 
not  indispensably  necessary  to  its  existence."  McCulloch  v.  Maryland, 
(1819)  4  Wheat.  (U.S.)  316.  4  L.  Ed.  579. 

"Act  of  March  4,  1909,  35  Stat.  at  L.  1088. 

"  Ibid,  Sees.  189-202,  205,  218-221,  227-228. 

13  The  enactment  of  ordinary  criminal  statutes  is  usually  classified  as 
an  exercise  of  power  outside  the  scope  of  the  police  power.  See  Freund, 
Police  Power,  Sees.  4-8. 


406  MINNESOTA  LAW  REVIEW 

injure  the  mails  themselves,  or  postal  property,  or  postal  em- 
ployees. 

1.  Regulations  to  Insure  Postal  Monopoly.  The  national 
postal  system  was  made  a  government  monopoly  in  179214  and 
has  remained  so  ever  since.15  Although  the  grant  of  postal  power 
to  Congress  did  not  by  its  terms  create  a  government  monopoly 
and  although  there  is  judicial  authority  for  the  view  that  the 
monopolistic  character  of  the  postal  system  results  not  from  the 
postal  clause  but  from  the  legislation  enacted  under  it,16  there 
would  seem  to  be  some  reason  to  believe  that  the  framers  of 
the  constitution  expected  that  the  new  post  office  would  become 
a  monopoly  in  the  hands  of  the  government.  There  was  plenty 
of  precedent  as  well  as  public  policy17  to  support  such  a  principle. 
The  British  post  office  had  long  been  a  government  monopoly18 
and  Blackstone  had  emphasized  the  paramount  necessity  for  such 
.exclusive  control.19  Thus  while  many  questions  have  from  time 
to  time  arisen  as  to  the  correct  interpretation  to  be  placed  upon 
the  acts  of  Congress  penalizing  the  private  carrying  of  the 
mails,20  there  has  been  no  serious  attack  made  upon  the  consti- 
tutional right  of  Congress  to  pass  those  laws.21  The  recent  action 

14  Act  of  Feb.  20,  1792,  1   Stat.  at  L.  232.     In  1782  the  Congress  of 
the   Confederation   had  passed   "An   Ordinance  for   Regulating  the   Post 
Office  of  the  United  States  of  America."    By  one  of  the  provisions  of  this 
Ordinance,  Congress  attempted  to  create  and  maintain  a  postal  monopoly. 
7  Journals  of  Congress  383.    For  summary  of  this  entire  act,  see  Rogers, 
op.  cit,  17  ff. 

15  United  States  Criminal  Code,  Act  of  March  4,  1909,  35  Stat.  at  L 
1088,  Sees.  179,  181,  186. 

16  "But  the  monopoly  of  the  government  is  an  optional,  not  an  essential 
part  of  its  postal  system.     The  mere  existence  of  a  postal  department  of 
the  government  is  not  an  establishment  of  the  monopoly."    United  States 
v.  Kochersperger,  (1860)  Fed.  Cas.  No.  15,541. 

17  "The  post  office  monopoly  is  primarily  an  institution  for  the  public 
benefit  which   must  exclude   competition   from   its   profitable  business    in 
order  to  carry  on  the  unprofitable  business,"  Freund,  Police  Power,  Sec. 
666.     If  the  post  office  were  to  be  used  as  a  means  of  raising  revenue  as 
suggested   in   the   Convention   of    1787    (supra,   note   3),    another  ground 
for  monopoly  would  exist. 

18  The  development  of  the  British  Post  Office  as  a  government  monop- 
oly is  traced  at  length  by  Hemmeon,   The  History  of   the   British   Post 
Office,  Ch.  IX. 

19  "Penalties  were  enacted  in  order  to  confine  the  carriage  of  letters 
to  the  public  office  only,  except  in  some  few  cases :  a  provision  which  is 
absolutely  necessary;  for  nothing  but  an  exclusive  right  can  support  an 
office   of   this   sort :   many   rival   independent   offices   would   only   serve  to 
ruin  one  another."     Cooley's  Blackstone,  I,  323. 

20  Rogers,  op.  cit,  41  ff. 

21  "To  give  efficiency  to  its  regulations  arid  prevent  rival  postal  sys- 
tems, it  may  perhaps  prohibit  the  carriage  by  others  for  hire,  over  postal 
routes,    of   articles    which   legitimately   constitute   mail    matter  .    .    ."    Ex 


THE  NATIONAL  POLICE  POWER  4Q7 

of  the  federal  authorities  to  prevent  under  the  terms  of  the 
Criminal  Code  the  transportation  of  telegraphic  night  letters  by 
train  instead  of  by  wire,  indicates  that  the  statutes  under  con- 
sideration are  adequate  to  cope  with  new  and  unusual  forms  of 
competition  against  the  United  States  mails.22 

2.  Exclusion  of  Articles  Injurious  to  the  Postal  Service.  If 
Congress  in  the  exercise  of  its  power  to  regulate  interstate  com- 
merce may  exclude  from  that  commerce  commodities  which  would 
endanger  or  injure  the  agencies  by  which  it  is  carried  on,23  then, 
a  fortiori,  it  must  follow  that  Congress  may  provide  similar  pro- 
tection ta  a  postal  system  which  it  not  merely  regulates  but 
establishes  and  conducts.  While  it  is  highly  desirable  that  Con- 
gress should  require  that  adequate  safety  devices  should  be  in- 
stalled on  interstate  trains  and  that  reasonable  regulations  be 
complied  with  in  transporting  explosives  or  other  dangerous 
materials,  the  fact  remains  that  the  federal  government  itself 
does  not  serve  as  a  common  carrier  and  its  responsibility  for 
the  physical  safety  of  interstate  commerce  is,  perhaps,  a  second- 
ary responsibility.24  The  public  which  rides  or  which  ships 
goods  in  interstate  commerce  would  be  loath  to  part  with  the 
protection  guaranteed  by  federal  laws;  but  their  plight,  were 
that  protection  removed,  would  be  no  different  from  that  of  the 
patrons  of  the  wholly  intrastate  carriers  which  are  not  subject 
to  federal  authority.  With  the  postal  service,  however,  the  case 
is  very  different.  In  respect  to  it  Congress  must  assume  a  very 
definite  and  primary  responsibility.  In  fact,  there  are  at  least 
four  cogent  reasons  for  the  congressional  exclusion  of  dangerous 
and  injurious  articles  from  the  mails  which  do  not  apply  to  the 
exclusion  of  similar  commodities  from  the  channels  of  interstate 
commerce.  In  the  first  place,  Congress  has  a  proprietary  interest 
in  the  postal  system  which  it  does  not  have  in  interstate  com- 
merce. In  passing  the  laws  in  question  Congress  is  but  taking 
reasonable  precautions  for  the  protection  of  the  property  of  the 
federal  government.  In  the  second  place,  in  conducting  its  mail 

parte  Jackson,  (1877)  96  U.  S.  727,  735,  24  L.  Ed.  877;  United  States  v. 
Bromley,  (1851)  12  How.  (U.S.)  87,  13  L.  Ed.  905;  United  States  v. 
Thompson,  (1846)  9  Law  Rep.  451,  Fed.  Cas.  No.  16,489. 

22  New  York  Times,  June  21,  1918. 

23  Cushman,  op.  cit.,  3  MINNESOTA  LAW  REVIEW  303. 

"Persons  sustaining  loss  by  reason  of  the  negligence  of  interstate 
carriers  would,  of  course,  have  a  right  of  action  against  the  carrier  to 
recover  damages  even  in  the  absence  of  any  statutory  regulations  insuring 
the  safety  of  interstate  commerce. 


408  MINNESOTA  LAW  REVIEW 

service  the  federal  government  offers  itself  as  a  carrier  of  other 
people's  property.  Letters  and  property  are  confided  to  its 
possession  and  control ;  indeed  the  laws,  as  has  been  seen,25  forbid 
all  persons  to  confide  mail  matter  to  any  one  but  the  postal 
authorities.  It  follows,  therefore,  that  the  government  must 
take  every  reasonable  precaution  to  insure  the  safety  of  the 
property  it  not  only  permits  but  virtually  requires  to  be  con- 
fided to  its  care.  If  it  fails  to  guarantee  such  safety  there  is  no 
one  else  to  whom  the  person  who  suffers  the  loss  or  injury  of 
his  property  may  look  for  reparation.  In  the  third  place,  Con- 
gress should  recognize  a  clear  responsibility  to  provide  adequately 
for  the  safety  of  its  postal  employees  and  to  see  that  they  are  not 
exposed  to  avoidable  dangers.  Finally,  since  Congress  has  cre- 
ated the  postal  system  and  is  the  author  and  source  of  all  postal 
privileges,  the  exercise  of  the  power  to  deny  those  privileges  to 
dangerous  or  injurious  articles  could  not  be  attacked,  as  the 
congressional  exclusions  from  interstate  commerce  have  some- 
times been  attacked,  on  the  ground  that  Congress  is  denying  a 
right  or  privilege  which  it  did  not  create  and  which  it  has  the 
authority  merely  to  regulate  and  not  to  destroy.26 

Enough  has  been  said  to  indicate  that  there  can  be  no  question 
of  the  constitutional  power  of  Congress  to  exclude  dangerous  and 
injurious  articles  from  the  mails.  It  is  not  only  the  right  of 
Congress  to  pass  such  legislation  but  it  is  also  its  duty.  This  duty 
has  been  fulfilled  by  the  insertion  into  the  Criminal  Code  of  a 
substantial  list  of  articles  which  are  declared  non-mailable  be- 
cause of  their  injurious  character,27  and  by  the  delegation  to  the 
postmaster  general  of  the  authority  to  expand  that  list.28  Not 
only  has  the  validity  of  this  legislation  never  been  questioned, 
but  the  courts  have  not  infrequently  alluded  to  these  laws  as 
examples  of  the  legitimate  exercise  of  the  postal  power  delegated 
to  Congress.29  Needless  to  say,  this  is  a  type  of  legislation  which 

25  Supra,  p.  406. 

26  For  discussion  of  this  distinction  see  infra,  p.  423. 

«  United   States   Criminal   Code,   Sec.  217,  Act  of   March  4,   1909,  35 
Stat.  at  L.  1131. 

28  United  States  Official  Postal  Guide,  1918,  p.  19. 

29  "It  [Congress]   may  also  refuse  to  include  in  its  mails  such  printed 
matter  or  merchandise  as  may  seem  objectionable  to  it  upon  the  ground 
of  public  policy,  as  dangerous  to  its  employees  or  injurious  to  other  mail 
matter  carried  in  the  same  packages.    The  postal  regulations  of  this  coun- 
try issued  in  pursuance  of  act  of  Congress  contain  a  long  list  of  prohibited 
articles  dangerous  in  their  nature,  or  to  other  articles  with  which  they 
may  come  in  contact,  such,  for  instance,  as  liquids,  poisons,  explosives  and 


THE  NATIONAL  POLICE  POWER  4Q9 

other  countries  have  also  enacted  in  order  to  provide  adequate 
protection  to  their  mails.30 

II.      CLASSIFICATIONS    OF    MAILING    PRIVILEGES    TO    PREVENT 
HARMFUL  AND  TO  ENCOURAGE  BENEFICIAL 
USES  OF  POSTAL  SYSTEM 

It  requires  no  argument  to  prove  that  the  vast  postal  system 
of  the  United  States,  rendering  as  it  does  its  many  varieties  of 
service  and  reaching  practically  every  home,  is  an  instrumentality 
for  promoting  and  spreading  civilization  and  culture.  It  is  an 
enormous  agency  for  good.  The  characteristics  which  make 
it  an  agency  for  good,  however,  also  make  it  an  agency  for  evil 
unless  measures  are  taken  to  prevent  its  misuse.  To  prevent 
the  postal  service  from  being  used  as  a  conduit  for  dumping 
injurious  and  harmful  matter  into  millions  of  homes,  and  to  keep 
it  from  serving  as  a  means  of  consummating  fraudulent  and 
unlawful  acts,  Congress  has  passed  a  substantial  body  of  legisla- 
tion: These  laws  are  manifestly  designed -for  the  protection 
of  the  public  and  not  of  the  postal  service  itself.  They  are  de- 
signed to  protect  the  public  from  the  misuse  of  the  mails.  They 
are  unmistakably  police  regulations  for  they  aim  squarely  at 
the  protection  of  the  public  health,  morals,  safety,  and  good 
order.  This  legislation  may  be  briefly  analyzed  and  described 
before  an  examination  of  its  constitutional  basis  and  limits  is 
entered  upon. 

1.  Obscene  Literature.  Since  the  regulation  of  private 
morals  is  by  the  division  of  power  between  the  nation  and  the 
states  left  to  the  latter,  there  was,  of  course,  no  reason  why 
Congress  should  concern  itself  with  the  problem  of  obscene 
literature  until  it  became  clear  that  the  mails  or  the  channels 
of  commerce  were  being  used  as  a  means  of  circulating  the  ob- 
noxious matter.  Federal  legislation  relating  to  obscene  literature 
began  with  the  Tariff  of  1842,  a  provision  of  which  forbade  the 
importation  into  this  country  of  obscene  literature  or  pictures.31 

inflammable  articles,  fatty  substances,  or  live  or  dead  animals,  and  sub- 
stances which  exhale  a  bad  odor.  It  has  never  been  supposed  that  the 
exclusion  of  these  articles  denied  to  their  owners  any  of  their  constitu- 
tional rights."  Public  Gearing  House  v.  Coyne,  (1903)  194  U.  S.  497, 
48  L,  Ed.  1092,  24  S.  C.  R.  789. 

30  For  summary  of  articles,  which,  under  the  laws  of  foreign  countries, 
may  not  be  sent  through  the  mails  into  such  countries,  see  U.  S.  Official 
Postal  Guide,  1919,  137  ff. 

81  Act  of  Aug.  30,  1842,  5  Stat.  at  L.  562,  Sec.  28.  For  the  develop- 
ment of  the  policy  of  excluding  obscene  literature  from  interstate  com- 
merce see  Cushman,  op.  cit,  3  MINNESOTA  LAW  REVIEW  388. 


410  MINNESOTA  LAW  REVIEW 

It  was  not  until  1865  that  Congress  took  steps  to  exclude  matter 
of  this  description  from  the  mails  ;32  and  the  first  really  effective 
legislation  for  this  purpose  seems  to  have  been  the  Act  of  March 
3,  1873. 33  Various  amendments  to  this  law  have  been  passed 
extending  its  scope  and  strengthening  its  provisions.34  At  the 
present  time  there  are  two  sections  of  the  United  States  Criminal 
Code  dealing  with  this  subject.35  By  the  first  of  these  provisions 
obscene  and  indecent  writings,  letters,  pictures,  or  printed  matter 
of  any  sort  are  declared  to  be  unmailable  as  well  as  all  contra- 
ceptive devices  and  information.36  Such  matter  may  not  be  con- 
veyed in  the  mails  nor  delivered  by  any  post  office  employee. 
To  deposit  such  matter  in  or  to  take  it  from  the  mails  is  made 
a  criminal  offense.  The  second  provision  makes  non-mailable 
under  severe  penalties  any  mail  matter  on  the  outside  cover  of 
which  is  found  any  obscene,  scurrilous,  libelous,  or  defamatory 
inscriptions  which  would  reflect  injuriously  upon  the  character 
or  conduct  of  another.37  While  the  postal  authorities  are  not  per- 
mitted to  receive  or  deliver  mail  matter  known  by  them  to  be 
in  violation  of  the  provisions  just  described,  they  are  rigidly 
forbidden  to  open  sealed  matter.38  While  authority  is  given  to 
exclude  non-mailable  matter,  there  is  no  power  to  prevent  the 
subsequent  circulation  through  the  mails  of  later  issues  of  the 

32  Act  of  March  3,  1865,  13  Stat.  at  L/507.    Amended  June  8,  1872,.  17 
Stat.  at  L.  302. 

33  17  Stat.  at  L.  599. 

s*  Act  of  July  12,  1876,  19  Stat.  at  L.  90;  Act  of  Sept.  26,  1888,  25 
Stat.  at  L.  496;  Act  of  May  27,  1908,  35  Stat.  at  L.  416;  Act  of  Mar.  4, 
1911,  36  Stat.  at  L.  1339. 

35  Sees.  211,  212,  Act  of  March  4,  1909,  35  Stat.  at  L.  1129. 

36  "And  the  term  'indecent'  within  the  intendment  of  this  section  shall 
include  matter  of  a  character  tending  to  incite  arson,  murder,  or  assassin- 
ation."    Sec.  211,  U.  S.  Criminal  Code.    The  prohibitions  of  the  act  have 
been  construed  as  applicable  to  the  veiled  advertisements  of  prostitutes. 
United  States  v.  Dunlop,  (1897)  165  U.  S.  486,  41  L.  Ed.  799,  17  S.  C.  R. 
375. 

37  This  .provision  is  applicable  to  the  sending  of  threatening  or  dun- 
ning inscriptions  on  packages  or  cards.     United  States  v.  Smith,   (1895) 
69  Fed.  971;  United  States  v.  Davis,   (1889)   38  Fed.  326;  United  States 
v.  Elliott,  (1892)  51  Fed.  807;  United  States  v.  Simmons,  (1894)  61  Fed. 
640. 

38  The  inviolability  of   sealed  mail  matter   from  government  invasion 
is  guaranteed  by  the  fourth  amendment  to  the  United  States  constitution 
which  provides,  "The  right  of  the  people  to  be  secure  in  their  persons, 
houses,   papers,   and   effects,   against  unreasonable   searches   and   seizures 
shall    not   be   violated.   ..."     "No   law   of    Congress   can   place   in   the 
hands  of  officials  connected  with  the  postal  service  any  authority  to  invade 
the  secrecy  of  letters  and  such  sealed  packages  in  the  mail ;  and  all  regula- 
tions adopted  as  to  mail  matter  of  this  kind  must  be  in  subordination  to 
the  great  principle  embodied  in  the  Fourth  Amendment  of  the  Constitu- 
tion."   Ex  parte  Jackson,  (1877)  96  U.  S.  727,  733,  24  L.  Ed.  877. 


THE  NATIONAL  POLICE  POWER  41 1 

excluded  publication  or  to  forbid  the  subsequent  use  of  the  mails 
to  any  persons  who  have  violated  these  provisions.39 

While  some  persons  have  appeared  from  time  to  time  to  ques- 
tion the  constitutionality  of  the  obscene  literature  acts40  and 
numerous  petitions  have  been  presented  to  Congress  urging  their 
repeal  ostensibly  on  constitutional  grounds,41  there  has  never  been 
any  substantial  body  of  opinion  to  doubt  the  authority  of  Con- 
gress to.  pass  them.  There  has  been  a  considerable  number  of 
cases  in  which  these  acts  have  been  construed  and  interpreted42 
and  a  number  of  the  lower  federal  courts  have  declared  them  to 
be  constitutional,43  but  their  validity  has  never  been  attacked 
before  the  Supreme  Court.44 

2.  Lottery  Tickets  and  Circulars.  Although  Congress  as 
well  as  the  state  legislatures  at  first  regarded  the  lottery  as  a  legiti- 
mate method  of  public  finance,45  public  sentiment  condemning 
the  institution  soon  began  to  make  itself  felt.  In  1827  Congress 
passed  its  last  act  authorizing  a  lottery46  and  its  first  act  hostile 
to  lotteries.47  This  latter  statute,  however,  was  not  a  serious 
blow  to  lottery  enterprises  since  it  merely  provided : 

39  The   annual    report   of   the   postmaster   general    for    1914  comments 
upon  the   many   requests   which   come  to  the  post  office   department   for 
action  of  this  sort  and  points  out  the  limitations  upon  the  power  of  the 
department  in  respect  thereto ;  p.  48. 

40  Schroeder,  Obscene  Literature  and  Constitutional  Law,  passim.  See 
also  Free  Speech  Anthology,  by  the  same  author. 

41  On   February  26,    1878,   Congressman   Benjamin   F.   Butler    (Mass.) 
presented  to  the  House  of  Representatives  a  petition  signed  by  50,000  per- 
sons   protesting   against    the    Obscene    Literature    Acts    and    asking   their 
amendment  in  such  a  manner  "that  they  cannot  be  used  to  abridge  the 
freedom   of   the   press,  or   of   conscience,   or   to   destroy  the   liberty   and 
equality  of  the  people  before  the  law  and  departments  of  the  government 
on    acount    of    any    religious,    moral,    political,    medical    or    commercial 
grounds  or  pretexts  whatsoever."     Congressional  Rec.  Vol.  VII,  p.  1340. 
Sixty-three  petitions  similar  in  character  were  presented  during  the  first 

42  See  Thomas,  Non-mailable  Matter,  Ch.  V ;  Rogers,  op.  cit.,  48  ff. 

43  United  States  v.  Wilson,  (1893)  58  Fed.  768;  United  States  v.  War- 
ner, (1894)  59  Fed.  355. 

43  Rogers,  op.  cit.,  48  ff. 

44  "For    more    than    thirty    years    not    only    has    the    transmission    of 
obscene  matter  been  prohibited,  but  it  has  been  made  a  crime,  punishable 
by  fine  or  imprisonment,  for  a  person  to  deposit  such  matter  in  the  mails. 
The  constitutionality  of  this  law,  we  believe,  has  never  been  attacked." 
Public  Clearing  House  v.  Coyne,    (1903)    194  U.   S.  497,  48  L.   Ed.   1092. 
24  S.1  C.  R.  789.     In  an  earlier  opinion  the  Supreme  Court  referred  to 
the   Obscene   Literature   Act   of    1873   with    apparent   approval    and    said, 
"All  that  Congress  meant  by  this  act  was,  that  the  mail  should  not  be 
used   to   transport   such   corrupting   publications    and   articles.  ..."    Ex 
parte  Jackson,  (1877)  96  U.  S.  727,  736,  24  L.  Ed.  877. 

45  For  summary  of  this  early  legislation  see  Thomas,  op.  cit.,  Sees.  1-4. 

46  Act  of  Feb.  22,  1827,  4  Stat.  at  L.  105.  This  act  authorized  the  city 
of  Washington  to  include  the  lands  of  Thomas  Jefferson  within  its  lottery 
schemes. 

"  Act  of  March  2,  1827,  4  Stat.  at  L.  238. 


412  MINNESOTA  LAW  REVIEW 

"That  no  postmaster  or  assistant  postmaster  shall  act  as 
agent  for  lottery  offices  or  under  any  color  of  purchase,  or  other- 
wise, send  lottery  tickets;  nor  shall  any  postmaster  receive  free 
of  postage  or  frank  lottery  schemes,  circulars,  or  tickets." 

This  mild  law,  however,  very  definitely  suggests  the  constitu- 
tional principle  upon  which  our  present  vigorous  anti-lottery 
statutes  rest :  namely,  that  Congress  may  refuse  to  lend  its  postal 
facilities  or  agents  in  furtherance  of  lottery  enterprises.  The 
next  congressional  attack  on  lotteries  did  not  occur  until  1868, 
when  an  act  was  passed  providing: 

"That  it  shall  not  be  lawful  to  deposit  in  a  post  office,  to  be 
sent  by  mail,  any  letters  or  circulars  concerning  lotteries,  so-called 
gift  concerts  or  similar  enterprises,  offering  prizes  of  any  kind 
on  any  pretext  whatever."48 

This  act,  however,  provided  no  adequate  means  of  enforce- 
ment and  proved  ineffective.49  In  1872  an  act  was  passed 
which  made  it  unlawful  to  deposit  in  the  mail  or  to  send  by 
mail  any  letters  or  circulars  concerning  illegal  lotteries,  so- 
called  gift  concerts,  or  other  similar  enterprises,  and  the 
postmaster  general  was  authorized  to  issue  a  fraud  order 
against  any  person  who  conducted  a  fraudulent  lottery,  gift 
concert,  etc.50  Four  years  later  this  act  was  amended  by 
striking  out  the  word  "illegal"  before  lotteries  and  making  the 
exclusion  applicable  to  all  lotteries  whether  forbidden  by  state 
law  or  not.51  The  word  "fraudulent"  was  retained,  however,  in 
the  section  relating  to  fraud  orders.52  In  1890  the  law  was 
amended  so  as  to  include  lottery  advertisements  in  newspapers 
within  its  prohibition  and  to  eliminate  the  word  "fraudulent" 
from  the  clause  just  mentioned.53  Under  this  legislation  the 
postmaster  general  was  authorized  to  prevent  by  the  issuance  of 
a  fraud  order  the  delivery  of  registered  letters  or  the  payment 
of  money  orders  to  persons  known  to  be  conducting  lotteries  or 
fraudulent  schemes.  By  Act  of  1895  the  department  was  given 
power  in  such  cases  to  withhold  ordinary  sealed  mail  matter  as 
well  as  registered  letters.54  The  anti-lottery  legislation  has  never 

48  Act  of  July  27,  1868,  15  Stat.  at  L.  194. 

49  There  was  no  penalty  provided  for  its  violation  and  no  appropri- 
ation to  cover  the  cost  of  administration. 

50  Act  of  June  8,  1872,  17  Stat.  at  L.  283. 
si  Act  of  July  12,  1876,  19  Stat.  at  L.  90. 

52  This   was   construed  to   mean  that  a   fraud   order  could   be   issued 
against  only  such  lotteries  as  were  actually  fraudulent  in  character.    Opin- 
ion of  Attorney-General  McVeagh,   (1881)   17  Op.  Atty.  Gen.  77. 

53  Act  of  Sept.  19,  1890,  26  Stat.  at  L.  465. 
"  Act  of  March  2,  1895,  28  Stat.  of  L.  964. 


THE  NATIONAL  POLICE  POWER  413 

attempted  to  prohibit  the  operators  of  these  enterprises   from 
sending  innocent  matter  through  the  mails. 

While  the  constitutionality  of  this  legislation  has  been  bitterly 
attacked  on  various  grounds,55  it  has  been  sustained  by  numerous 
federal  courts56  and  by  the  United  States  Supreme  Court  in  two 
important  cases57  the  principles  of  which  will  be  discussed  at  a 
later  point  in  this  article.-58 

3.  Fraudulent  Matter.  The  first  attempt  made  by  Congress 
to  prevent  the  use  of  the  mails  for  the  circulation  of  correspond- 
ence relating  to  fraudulent  schemes  and  enterprises  was  in  1872.59 
This  act  subjected  to  severe  penalty  any  person  who  devised  any 
scheme  or  artifice  to  defraud -to  be  carried  on  by  means  of  corre- 
spondence through  the  mails  and  who  so  used  the  mails  in 
furtherance  of  such  project.  It  authorized  the  postmaster  gen- 
eral to  withhold  registered  letters  and  payment  on  money  orders 
from  those  who  he  had  reason  to  believe  were  using  the  mails 
for  the  forbidden  purposes  mentioned.  This  law  was  expanded 
and  strengthened  by  amendment  in  188960  by  elaborating  the  list 
of  schemes  brought  within  the  prohibition61  and  by  forbidding 
persons  engaged  in  the  proscribed  enterprises  to  use  the  mails 

55  For  a  very  able  presentation  of  the  case  against  this  legislation  see 
the  argument  of  Mr.  James  C.  Carter  for  the  defendants  in  the  case  of  In 
re  Rapier,  (1892)  143  U.  S.  110,  113,  36  L.  Ed.  90,  12  S.  C.  R.  353.  See 
also  brief  for  defendants  in  Ex  parte  Jackson,  (1877)  %  U.  S.  727,  24  L. 
Ed.  877.  Also  article  by  Mr.  Hannis  Taylor  entitled,  "A  Blow  at  the 
Freedom  of  the  Press,"  (1892)  155  North  American  Review  694.  Mr. 
Taylor's  attack  is  based  largely  on  the  fact  that  in  the  Lottery  Act  of  1890 
the  test  of  the  immoral  or  injurious  character  of  the  matter  excluded  was 
not  left  to  a  jury  but  was  determined  by  tests  which  Congress  established 
in  the  act  itself. 

5«  In  re  Jackson  (1877)  14  Blatch.  (U.  S.  C.  C.)  245,  Fed.  Cas.  No. 
7,124;  New  Orleans  National  Bank  v.  Merchant,  (1884)  18  Fed.  841. 

"Ex  parte  Jackson,  (1877)  96  U.  S.  727,  24  L.  Ed.  877;  In  re  Rapier, 
(1892)  143  U.  S.  110,  36  L.  Ed.  90,  12  S.  C.  R.  353. 

58  Infra,  p.  419  ff. 

59  Act  of  June  8,  1872,  17  Stat.  at  L.  283. 

60  Act  of  March  2,  1889,  25  Stat.  at  L.  873. 

61  The  prohibitions  of  the  act  were  extended  to  apply  to  those  who 
used  the  mails  "to  sell,  dispose  of,  loan,  exchange,  alter,  give  away,  or 
distribute,  supply,  or  furnish,  or  procure  for  unlawful  use,  any  counter- 
feit  or   spurious   coin,    bank   notes,    paper    money,    or   any   obligation   or 
security  of  the  United  States  or  of  any  State,  Territory,  municipality,  com- 
pany, corporation,  or  person,  or  anything  represented  to  be  or  intimated 
or  held  out  to  be  such  counterfeit  or  spurious  articles,  or  any  scheme  or 
artifice  to  obtain  money  by  or  through  correspondence  by  what  is  com- 
monly called  the  'sawdust  swindle,'  or  'counterfeit  money  fraud'  or  by 
dealing  or  pretending  to  deal  in  what  is  commonly  called  'green  articles' 
'green  coin,'  'bills,'  'paper  goods,'  spurious  Treasury  notes ;  'United  States 
goods,'  'green  cigars,'  or  any  other  names  or  terms  intended  to  be  under- 
stood as  relating  to  such  counterfeit  or  spurious  articles." 


414  MINNESOTA  LAW  REVIEW 

under  an  assumed  name.62  In  1895  the  scope  of  the  fraud  orders 
issued  was  extended  to  include  all  first  class  mail.63  While  post 
office  officials  have  from  time  to  time  recommended  the  further 
amendment  of  the  anti-fraud  statutes  to  embrace  within  their 
provisions  enterprises  not  now  included,84  the  present  legislation 
has  proved  adequate  to  put  an  end  to  thousands  of  cheating  and 
swindling  schemes  which  had  used  the  mails  as  the  indispensable 
means  of  getting  into  touch  with  their  victims.65 

As  in  the  case  of  the  acts  already  examined,  there  has  been 
a  large  amount  of  litigation  over  the  construction  of  the  anti- 
fraud  acts  and  their  applicability  to  specific  schemes  or  enter- 
prises.66 There  have  been  attacks  upon  the  constitutionality  of 
the  statutes  on  the  ground  of  the ' procedure  provided  for  the 
issuance  of  fraud  orders  and  the  courts  have  laid  down  certain 
rules  respecting  the  scope  and  finality  of  the  postmaster  general's 
discretion  in  the  matter.67  Both  lower  federal  courts68  and  the 

62  By  a  section  of  this  act,  the  postmaster  general  is  authorized  to 
require  the  personal  identification  of  persons  receiving  mail  matter  when 
he  has  reason  to  believe  that  the  names  or  addresses  on  such  matter  are 
fictitious. 

es  Act  of  March  2,  1895,  28  Stat.  at  L.  964. 

64  The  annual  reports  of  the  postmaster  general  in  recent  years  have 
repeatedly  urged  the  inclusion  within  the  prohibitions  of  the  law  of  all 
gambling  devices  or  paraphernalia  of  any  sort.    For  the  text  of  this  pro- 
posed legislation  see  Report  of  the  Postmaster  General  for  1914,  p.  81. 

65  Data  regarding  the  operation  of  the  law  is   summarized  yearly  in 
greater  or  less  detail  in  the  report  of  the  postmaster  general.     See  report 
for  1918,  p.  58. 

66  These  questions  are  discussed  in  detail  in  Thomas,  op.  cit.,  Ch.  IV. 
See  also  Rogers,  op.  cit.,  56.    It  may  be  noted  that  schemes  which  may  be 
included  within  the  prohibitions  of  the  act  as  "fraudulent"  are  not  merely 
those  which  would  be  held  fraudulent  at  common  law  as  involving  actual 
misrepresentation  as  to  a  past  or  existing  fact,  but  extend  to  "everything 
designed  to  defraud  by  representations  as  to  the  past  or  present  or  sug- 
gestions and  promises  as  to  the  future.  ...  It  was  with  the  purpose  of 
protecting  the  public  against  all   such  intentional  efforts  to  despoil  and 
prevent  the  post  office  from  being  used  to  carry  them  into  effect  that  this 
statute  was  passed ;  and  it  would  strip  it  of  its  value  to  confine  it  to  such 
cases  as  disclosed  an  actual  misrepresentation  as  to  some  existing  fact,  and 
exclude  those  in  which  is  only  the  allurement  of  a  specious  and  glittering 
promise."    Durland  v.  United  States,  (18%)  161  U.  S.  306,  314,  40  L.  Ed. 
712,  16  S.  C  R.  508. 

67  It  has  been  held  by  the  Supreme  Court  that  the  judgment  of  the  post- 
master general  with  reference  to  the  issuance  of  fraud  orders  must  be 
based  on  facts  supported  by  evidence  as  to  the  fraudulent  nature  of  the 
enterprise  concerned  and  may  not  be  based  merely  upon  his  personal  belief 
that  the  scheme  is  fraudulent.     A  fraud  order  was  held  unlawfully  issued 
against  a  concern  which  claimed  to  cure  disease  by  the  influence  of  the 
mind  because  "there  is  no  exact  standard  of  absolute  truth  by  which  to 
prove  the  assertion  false  and  a  fraud.  .    .    .  We  may  not  believe  in  the 
efficacy  of  the  treatment  to  the  extent  claimed  by  the  complainants,  and 
we  may  have  no  sympathy  with  them  in  such  claims,  and  yet  their  effec- 
tiveness is  but  a  matter  of  opinion  in  any  court."     American  School  of 


THE  NATIONAL  POLICE  POWER  415 

United  States  Supreme  Court69  have  held  that  Congress  enjoys 
power  under  the  constitution  to  pass  the  legislation  in  question, 
which  does  not  after  all  differ  in  principle  from  the  acts  relating 
to  obscene  literature  and  lotteries. 

4.  Prize  Fight  Films.    By  a  statute  passed  in  1912  it  is  made 
a  criminal  offense  to  import  from  abroad  for  purposes  of  public 
exhibition  pictures  or  moving  picture  films  of  prize  fights  or  to 
send  them  in  or  to  receive  them  from  interstate  commerce  or  the 
mails.70    The  only  litigation  to  date  respecting  the  validity  of  this 
act  concerns  the  provision  against  importation.71     There  can  be 
no  doubt  whatever  that  that  portion  of  the  act  which  authorizes 
the  exclusion  f  rom  the  mails  would  be  sustained  by  the  Supreme 
Court  should  its  constitutionality  be  questioned. 

5.  Seditious  and  Treasonable  Publications.     It  will  be  re- 
called that  one  of  the  reasons  which  led  England  and  other  coun- 
tries to  make  their  post  offices  government  monopolies  was  the 
desire  to  use  the  mail  facilities  for  an  official  espionage  on  private 
correspondence  with  a  view  to  discovering  who  were  the  enemies 
of  the  sovereign  or  his  ministers.72    It  is  quite  natural  that  this 

Magnetic  Healing  v.  McAnnulty,  (1902)  187  U.  S.  94,  47  L.  Ed.  90,  23  S. 
C.  R.  33. 

The  problem  of  the  finality  of  the  action  of  the  postmaster  general  in 
issuing  fraud  orders  is  touched  upon  in  a  general  article  by  Professor 
T.  R.  Powell  entitled,  Conclusiveness  of  Administrative  Determinations  in 
the  Federal  Government,  Amer.  Pol.  Sci.  Rev.,  Aug.  1907,  p.  583. 

For  criticism  of  the  broad  powers  conferred  upon  the  postmaster  gen- 
eral by  this  legislation  see  Pierce,  Federal  Usurpation,  p.  354. 

68  New  Orleans  Nat'l  Bank  v.  Merchant,  (1884)  18  Fed.  841;  Hoover 
v.  McChesney,  (1897)  81  Fed.  472;  United  States  v.  Loring,  (1884)  91 
Fed.  881. 

89  Public  Clearing  House  v.  Coyne,  (1903)  194  U.  S.  497,  24  S.  C.  R. 
789. 

™  Act  of  July  31,  1912,  37  Stat.  at  L.  240. 

71  Weber  v.  Freed,  (1915)  239  U.  S.  325,  60  L.  Ed.  308,  36  S.  C.  R.  131. 
See  Cushman,  op.  cit,  3  MINNESOTA  LAW  REVIEW  392. 

72  Hemmeon    points    out   that    the   proclamation    of    1591    making   the 
British  foreign  post  a  monopoly  was  issued  "in  order  that  the  government 
might  be  able  to  discover  any  treasonable  or  seditious  correspondence," 
History  of  British  Post  Office,  190.     Freund  states :  "In  a  royal  grant  of 
the  office  of  postmaster  to   foreign  parts    (July   19,   1632,   XIX   Rymer's 
Foedera  385)    the  monopoly  is  justified  by  the  consideration,  how  much 
it  imports  to  the  state  of  the  King  and  this  realm  that  the  secrecy  thereof 
be   not   disclosed   to    foreign   nations,   which   cannot   be   prevented   if    a 
promiscuous    use   of    transmitting   or    taking    up    of    foreign    letters    and 
packets  should  be  suffered.'     Cromwell  spoke  of  the  Post  Office  as  the 
best  means  to  discover  and  prevent  dangerous  and  wicked  designs  against 
the  commonwealth,"  Police  Power,  Sec.  666,  note.     See  also  May,  Consti- 
tutional History  of  England,  II,  245  ff. 

"The  post  office  is  no  longer  regarded  in  England  as  a  means  of  detect- 
ing conspiracies.  Letters  passing  through  the  mails  may  nevertheless  be 
opened  on  the  warrant  of  the  secretary  of  state,  but  the  occurence  is 


416  MINNESOTA  LAW  REVIEW 

early  purpose  should  not  be  entirely  forgotten  even  in  those 
countries  in  which  the  secrecy  of  the  mail  is  now  preserved,  and 
that  in  critical  times  efforts  should  be  taken  to  prevent  the  use 
of  mail  facilities  for  treasonable  or  seditious  purposes.73  No 
government  can  be  expected  to  lend  positive  aid  to  those  who 
are  seeking  to  accomplish  its  destruction.  It  would,  of  course, 
be  unnecessary  to  forbid  specifically  the  use  of  the  mails  for  the 
actual  execution  of  a  treasonable  plot  or  conspiracy.74  In  time 
of  war,  however,  the  United  States  government  has  taken  steps 
to  prevent  the  circulation  through  the  mails  of  matter  which 
would  tend  even  indirectly  to  interfere  with  the  success  of  the 
military  preparations  or  campaigns  of  the  government.  During 
the  Civil  War  the  exclusion  of  objectionable  matter  from  mails 
was  carried  on  by  the  executive  arm  of  the  government75  with- 
out the  authority  of  any  statute  but  with  the  acquiescence  of 
Congress.76  While  there  was  protest  from  those  subjected  to  this 
treatment,77  there  seems  to  have  been  no  litigation-  arising  from 
these  executive  acts,  which  were  apparently  regarded  as  part  of 
the  military  policy  of  the  government.78  When  the  Obscene 
Literature  Act  of  1872  was  passed  Congress  included  in  its  de- 
scription of  proscribed  matter  "any  letter  upon  the  envelope  of 
which,  or  postal  card  upon  which  scurrilous  epithets  may  have 

very  rare,  and  would  be  sanctioned  by  public  opinion  only  in  extreme 
cases."  Cooley's  Blackstone,  Book  I,  323,  note. 

73  See  provisions  of  the  recent  Trading  with  the  Enemy  Act  establish- 
ing a  censorship  of  foreign  mail  and  forbidden  communications  to  foreign 
countries  during  the  period  of  the  war  except  through  the  mails.     Act  of 
Oct.  6,  1917,  40  Stat.  at  L.  412. 

74  "The  overt  act  of  putting  a  letter  into  the  post  office  of  the  United 
States  is  a  matter  that  Congress  may  regulate.  .    .   ,.  Intent  may  make 
an  otherwise  innocent  act  criminal,  if  it  is  the  step  in  a  plot."     Badders  v. 
United  States,  (1916)  240  U.  S.  391,  36  S.  C.  R.  367. 

75  These  exclusions  do  not  seem  to  have  been  carried  out  by  the  post 
office  department  exclusively.     This  power  was  exercised  by  the  secretary 
of  state  on  some  occasions.  This  officer  withdrew  mail  privileges  from  the 
New  York  Staats  Zeitung  and  from  the  National  Zeitung  (New  York)  in 
1861.     Official  Records  of  War  of  Rebellion,  2nd  Series,  Vol.  2,  494,  501. 
For  instances  of  such  exclusion  of  newspapers  from  the  mails  by  mili- 
tary authority  see  Sen.  Doc.  No.   19,  37  Cong.,  3d  Sess.     The  writer  is 
indebted  to  Professor  James  G.  Randall  for  this  data. 

76  An  investigation   into  the  alleged  arbitrary  acts  of  the  postmaster 
general  was  conducted  in  1862  and  1863  by  the  Judiciary  Committee  of  the 
House  of  Representatives.     The  power  claimed  by  the  postmaster  general 
was  sustained  by  the  committee  and  no  action  was  taken.  Burgess,  The 
Civil  War  and  the  Constitution,  II,  222-3. 

77  An  editorial  in  the  New  York  World  for  August  18,  1864,  denounced 
the  espionage  upon  private  correspondence  by  postal  authorities. 

78  See  the  valuable  article  by  Professor  James  G.  Randall,  "The  News- 
paper Problem   in   Its   Bearing  upon   Military  Secrecy   During  the   Civil 
War,  (1918)  23  Am.  Hist.  Rev.,  303. 


THE  NATIONAL  POLICE  POWER  417 

been  written  or  printed  or  disloyal  devices  printed  or  engraved 
thereon."79  When  this  act  was  amended  and  broadened  in  scope 
the  next  year,  however,  the  phrase  relating  to  "disloyal  devices" 
was  omitted.80  The  first  effective  legislation  which  Congress 
enacted  dealing  with  this  problem  is  found  in  the  Espionage  Act 
of  19 17.81  In  addition  to  its  general  prohibitions  the  law  pro- 
vides that  any  mail  matter  which  is  in  violation  of  any  provisions 
of  the  statute  is  non-mailable,  that  any  matter  "urging  treason, 
insurrection,  or  forcible  resistance  to  any  law  of  the  United 
States,  is  hereby  declared  non-mailable."  A  heavy  penalty  is 
inflicted  upon  those  who  use  or  attempt  to  use  the  mails  for  the 
transmission  of  any  matter  thus  declared  non-mailable.82  In  1918 
this  act  was  amended  so  as  to  extend  to  the  postmaster  general 
during  the  period  of  the  war  authority  to  order  all  mail  matter 
to  be  withheld  from  persons  who,  "upon  evidence  satisfactory 
to  him,"  he  concludes  are  using  the  mails  in  violation  of  any  of 
the  provisions  mentioned  above.83 

This  legislation  has  been  much  discussed  both  from  the  stand- 
point of  public  policy  and  from  that  of  constitutional  law.  It 
seems  clear,  however,  that  most  of  the  attacks  which  have  been 
made  upon  it  have  been  directed  in  reality  not  so  much  at  the 
validity  of  the  statute  itself  as  at  the  administration  of  it  and  its 
proper  applicability  to  concrete  cases.  On  the  point  of  constitu- 
tional power  to  pass  the  acts  in  question  there  can  be  no  serious 
disagreement.  The  Obscene  Literature  Acts  and  the  Anti-Fraud 
Acts  afford  clear  precedents ;  and  the  lower  federal  courts  which 
have  passed  upon  the  constitutionality  of  these  clauses  of  the 
Espionage  Act  have  uniformly  upheld  them.84 

6.  Denial  of  Postal  Facilities  Used  for  Violating  Federal 
Law.  In  at  least  two  of  the  statutes  which  have  been  mentioned, 
Congress  has  legislated  upon  the  theory  that  it  was  proper  to 
refuse  to  allow  the  postal  facilities  to  be  used  as  an  agency  in 
the  violation  of  federal  law.  The  Anti-Fraud  Act  at  the  present 
time  includes  within  its  prohibitions  the  use  of  the  mails  to  dis- 

79  Act  of  June  8,  1872.  17  Stat.  at  L.  302. 

8°  Act  of  March  3,  1873,  17  Stat.  at  L.  599. 

si  Act  of  June  15,  1917,  40  Stat.  at  L,  230. 

82  The  provision  in  the  Trading  with  the  Enemy  Act  for  the  licensing 
by  the  postmaster  general  under  direction  of  the  president-  of  foreign 
language  newspapers  is  not  primarily  a  postal  regulation,  since  the  right 
was  denied  to  unlicensed  papers  not  merely  to  mail  but  to  publish  or  cir- 
culate in  any  other  way.  Act  of  Oct.  6,  1917,  40  Stat.  at  L.  425. 

ss  Act  of  May  16,  1918,  40  Stat.  at  L.  553. 

84  Masses  Publishing  Co.  v.  Patten,  (1917)  244  Fed.  535;  same,  (1917) 
245  Fed.  102;  Jeffersonion  Publishing  Co.  v.  West,  (1917)  245  Fed.  585. 


418  MINNESOTA  LAW  REVIEW 

pose  of,  circulate,  or  procure  counterfeit  money  or  securities  of 
the  United  States.85  Congress  possesses,  of  course,  adequate 
power  to  punish  the  counterfeiting  of  its  own  currency  and  securi- 
ties and  those  of  foreign  countries  and  has  long  since  exercised 
this  power.86  By  the  provision  dealing  with  the  transmission  of 
counterfeit  money  or  securities  through  the  mails,  Congress  has 
merely  refused  to  permit  the  United  States  Post  Office  to  act  as 
an  unwitting  accomplice  of  those  committing  or  intending  to 
commit  a  crime  against  the  laws  of  the  United  States.  In  the 
same  way  it  will  be  recalled  Congress  made  it  unlawful  to  trans- 
mit through  the  mails  any  matter  which  was  in  violation  of  any 
provision  of  the  Espionage  Act.87  Upon  the  same  theory  rests 
the  statutory  provision  declaring  non-mailable  any  publication 
which  violates  any  copyright  granted  by  the  United  States.88 

It  would,  of  course,  be  possible  to  expand  very  greatly  the 
amount  of  this  type  of  legislation  and  there  have  been  proposals 
from  time  to  time  to  that  effect.89  It  would  be  entirely  possible 
to  penalize  the  use  of  the  mails  as  an  aid  in  the  violation  of  the 
prohibition  amendment,  the  Sherman  Act,  or  for  the  purpose  of 
soliciting  unlawful  campaign  contributions  in  congressional  elec- 
tions. It  is  difficult  to  imagine  any  offense  against  the  United 
States  government  in  the  furtherance  of  which  the  criminal  might 
not  make  use  of  the  facilities  of  the  postal  service.  The  power 
of  Congress  to  punish  the  use  of  the  mails  for  these  unlawful 
purposes  seems  to  be  quite  unassailable.  As  a  matter  of  practical 
expediency,  however,  this  sort  of  legislation  is  not  apt  to  be 
resorted  to  unless  the  systematic  use  of  the  postal  facilities  is 
so  vital  to  the  accomplishment  of  the  crime  that  under  normal 
circumstances  the  post  office  affords  a  more  or  less  effective 
means  for  its  detection  or  prevention.90 

85  Supra,  note  61. 

86  These  prohibitions  are  to  be  found  in  Chapter  VII  of  the  United 
States  Criminal  Code,  Act  of  March  4,  1909,  35  Stat.  at  L.  1115. 

87  Supra,  p.  417.    It  is  also  made  a  criminal  offense  to  send  through  the 
mails  any  threats  against  the  life  of  the  president  of  the  United  States. 
The  same  provision  penalizes  the  making  of  such  threats  orally  or  in  any 
other  way.    Act  of  Feb.  14,  1912,  39  Stat.  at  L.  919. 

88  Act  of  March  3,  1879,  20  Stat.  at  L.  359.    Section  320  of  the  Crimi- 
nal Code  makes  it  a  penal  offense  to  import  from  abroad  through  the 
mails  any  publication  which  violates  copyright  laws  or  infringes  rights 
accruing  thereunder.    Act  of  March  4,  1909,  35  Stat.  at  L.  1083. 

89  It  has  been  proposed,  for  example,  to  penalize  the  use  of  the  mails 
for  the  purpose  of  securing  false  witnesses,  suborning  perjury  and  like 
offenses.    A  bill  to  this  effect  was  introduced  in  the  Senate  in  1917.     See 
Sen.  bill  2523,  Cong.  Rec.,  June  27,  1917,  Vol.  55,  p.  4337. 

90  No  useful  purpose  would  be  served  by  making  it  a  crime  to  mail  a 
letter  in  furtherance  of  such  an  offense  against  the  criminal  laws  of  the 


THE  NATIONAL  POLICE  POWER  419 

THE  QUESTION  OF  CONSTITUTIONALITY 

The  foregoing  analysis  has  sketched  briefly  the  principal  types 
of  statutes  by  which  Congress  has  sought  to  prevent  the  federal 
postal  system  from  being  used  as  a  means  of  distributing  in- 
jurious matter  or  of  aiding  the  consummation  of  injurious  and 
illicit  transactions.  In  every  case  in  which  the  constitutionality 
of  any  of  these  acts  has  been  passed  upon  by  a  court  it  has  been 
sustained;  and  there  can  be  no  doubt  but  that  those  acts  which 
have  not  been  subjected  to  judicial  scrutiny  rest  upon  the  same 
or  equally  firm  constitutional  grounds.  The  very  unanimity  with 
which  the  courts  have  declared  that  Congress  has  not  gone  too 
far  in  enacting  these  laws  has,  of  course,  precluded  the  making 
of  any  authoritative  judicial  pronouncement  as  to  just  how  far 
Congress  may  still  go  in  the  exercise  of  this  power.  The  ques- 
tion whether  Congress  has  exhausted  its  authority  in  this  particu- 
lar legislative  field  remains  open  for  speculation.  It  is  a  question 
which  may  conveniently  be  dealt  with  under  two  headings: 
first,  the  constitutional  basis  for  the  power  now  under  consider- 
ation ;  this  will  involve  a  review  of  the  various  theories  advanced 
in  support  of  that  power;  and  second,  the  constitutional  limita- 
tions within  which  the  power  must  be  exercised.  Consideration 
of  these  two  problems  may  aid  in  reaching  a  conclusion  as  to 
whether  Congress  may  go  still  further  in  prohibiting  the  use  of 
the  mails  as  an  agency  for  evil  or  undesirable  ends,  or  in  en- 
couraging such  use  for  purposes  beneficial  to  the  public  welfare. 

1.  Constitutional  Basis  of  Legislation.  Opinions  regarding 
the  power  of  Congress  to  exclude  different  classes  of  things  from 
the  mails  range  all  the  way  from  the  view  that  Congress  has 
no  power  to  exclude  anything  which  was  mailable  at  the  time  the 
federal  constitution  was  formed91  to  the  equally  extreme  view 
that  Congress  may  exclude  from  the  mails  anything  it  pleases.92 
But  the  theories  on  which  the  right  of  exclusion  has  most  com- 
monly been  sustained  are  two  in  number. 

United  States  as  peonage,  or  piracy,  or  other  crimes  where  the  use  of 
postal  facilities  would  form  a  rare  or  very  minor  means  of  criminal 
accomplishment. 

01  "So  long  as  the  duty  of  carrying  the  mails  is  imposed  upon  Congress, 
a  letter  or  a  packet  which  was  confessedly  mailable  matter  at  the  time  of 
the  adoption  of  the  constitution,  cannot  be  excluded  by  them,  provided  the 
postage  be  paid  and  other  regulations  be  observed."  Brief  for  defendants 
in  Ex  parte  Jackson,  (1877)  96  U.  S.,  727,  24  L.  Ed.  877.  The  view  was 
expressed,  however,  that  matter  which  had  become  mailable  since  that 
time  could  be  excluded. 

82  See  infra,  p.  421. 


420  MINNESOTA  LAW  REVIEW 

(a)  In  the  first  place,  there  has  been  a  general  recognition 
of  the  fact  that  a  very  special  duty  and  responsibility  rests  upon 
Congress  to  protect  the  public  from  certain  types  of  evils  or 
injuries  to  which  the  very  existence  of  an  efficient  postal  system 
would  otherwise  expose  them.  As  has  been  pointed  out  elsewhere, 
Congress  has  long  since  recognized  and  assumed  a  similar  re- 
sponsibility in  respect  to  foreign  and  interstate  commerce.93  If 
Congress  possesses  such  police  power  by  reason  of  its  authority 
over  a  commerce  which  it  does  not  create  but  merely  regulates,  it 
cannot  be  doubted  that  equal  or  even  greater  authority  would 
be  derived  from  the  power  to  "create"  or  "establish"  a  postal 
system.  It  may  be  urged,  in  fact,  that  while  the  constitutional 
authority  arising  from  the  commerce  and  postal  clauses  is  ample 
in  both  cases  to  support  this  type  of  legislation,  a  much  stronger 
moral  obligation  rests  upon  Congress  to  protect  the  public  health, 
morals,  safety,  and  general  welfare  from  the  misuse  of  the  mails 
than  from  the  misuse  of  the  facilities  of  interstate  commerce. 
Two  considerations  support  this  view.  The  first  is  that  the 
responsibilities  arising  from  the  fact  of  creation,  ownership, 
and  operation  of  an  institution  may  be  reasonably  regarded 
as  greater  than  those  arising  from  a  power  merely  to  "regulate" 
a  system  or  institution  which  Congress  did  not  create,  does  not 
own  nor  operate,  and  cannot  destroy.  The  second  is  that  the 
ordinary  individual  is  in  a  much  better  position  to  protect  him- 
self from  the  misuse  of  interstate  commerce  than  from  the  misuse 
of  the  mails.  This  is  due  to  the  essential  differences  between  the 
two  systems.  Under  normal  circumstances  the  participation  of 
the  individual  in  the  transactions  of  interstate  commerce  and 
his  relations  to  interstate  carriers  result  from  a  voluntary  con- 
tractual relationship.  Spurious  or  even  harmful  products  may 
be  sent  to  him,  but  rarely  without  his  having  bargained  for  the 
shipment  of  any  products  at  all.  A  very  different  situation  exists 
with  respect  to  the  postal  system.  At  practically  negligible  cost 
to  the  sender,  grossly  indecent  letters  or  papers  could  be  brought 
several  times  a  day  to  the  door  of  any  person  by  an  employee  of 
the  United  States  government  and  this  without  the  previous 
knowledge  and  against  the  wishes  of  the  recipient.  Without 
depriving  himself  of  all  the  conveniences  arising  from  the  regu- 
lar visits  of  the  postman  a  person  might  be  quite  unable  to  pro- 
tect himself  against  this  sort  of  abuse.  It  is  not  unreasonable  to 

93  Cushman,  op.  cit,  3  MINNESOTA  LAW  REVIEW  381  ff. 


THE  NATIONAL  POLICE  POWER  421 

assert  that  the  governmental  authority  which  thus  penetrates 
daily  the  very  homes  of  the  people  must  recognize  a  commensu- 
rate duty  of  protecting  those  homes  from  the  distribution  of 
noxious  matter.  Even  those  who  have  been  solicitous  that  the 
national  government  should  not  attempt  to  extend  its  s-uthority 
over  subjects  commonly  left  to  state  control  have  looked  upon 
the  sort  of  national  police  regulations  now  under  consideration 
as  not  only  harmless  but  highly  desirable.94  Assuming  for  the 
sake  of  argument  that  every  citizen  enjoys  a  well-protected  con- 
stitutional right  to  the  unrestricted  and  equal  use  of  the  mails, 
it  would  be  useless  to  argue  that  the  regulations  in  question  un- 
constitutionally abridge  that  right,  since  no  one  can  be  said  to  have 
a  right  to  circulate  matter  which  is  injurious  to  the  public  health, 
morals,  or  safety.95  Most  of  the  court  decisions  in  which  the 
validity  of  this  type  of  legislation  has  been  considered  have  laid 
strong  emphasis  upon  the  right  and  duty  of  Congress  tp  protect 
the  public  welfare  from  the  abuse  of  mail  privileges.96 

,  (b)  There  are  those,  however,  who  go  beyond  this  admittedly 
conservative  view  of  the  power  of  Congress  to  exclude  various 
types  of  matter  from  the  mails  which  has  just  been  discussed. 
They  take  the  position  that  Congress  may  not  only  make  it  unlaw- 
ful to  send  through  the  mails  such  things  as  are  dangerous  to 
health,  morals,  or  safety,  either  intrinsically  or  in  the  use  to  which 
they  are  to  be  put,  but  may  also  deny  mail  privileges  to  things 
or  to  transactions  which  do  not  conform  to  congressional  views 
of  public  policy.  In  other  words,  the  power  of  exclusion  is  held 
to  extend  not  only  to  things  which  are  actually  or  potentially 
injurious  or  dangerous  but  to  those  the  circulation  of  which  in 
the  judgment  of  Congress  would  be  undesirable  or  unwise.97 

94  See  discussion  of  Mr.  Bryan's  views  on  this  point,  infra  p.  436. 

^  Lottery  Case,  (1903)  188  U.  S.  321,  23  S.  C.  R.  321,  47  L.  Ed.  492; 
Hoke  v.  United  States,  (1913)  227  U.  S.  308,  33  S.  C.  R.  281,  57  L.  Ed., 
523. 

96  United    States   v.   Journal   Co.,    (1912)    197   Fed.   415;    Knowles   v. 
United   States,    (1909)    170  Fed.  409;    In  Jeffersonion    Publishing   Co.   v. 
West,  (1917)  245  Fed.  585,  the  court  said  in  respect  to  the  exclusion  of  mail 
matter  in  violation  of  the  Espionage  Act,  "Had  the  postmaster  general 
longer  permitted  the  use  of  the  postal  system  which  he  controls  for  the 
dissemination  of  such  poison,  it  would  have  been  to  forego  the  opportunity 
to  serve  his  country  afforded  by  his  lofty  station." 

97  An  extreme  statement  of  this  view  is  found  in  the  argument  for  the 
government  in  Lewis  Publishing  Co.  v.  Morgan,  (1913)  229  U.  S.  288,  57 
L.  Ed.  1190,  33  S.  C.  R.  867. 

It  was  stated  in  substance  that  the  postal  power  is  one  which  "conveys 
an  absolute  right  of  legislative  selection  as  to  what  shall  be  carried  in  the 
mails,  and  which  therefore  is  not  in  any  wise  subject  to  judicial  control, 


422  MINNESOTA  LAW  REVIEW 

The  considerations  advanced  in  support  of  this  position  may  be 
briefly  reviewed. 

At  the  outset  it  must  be  admitted  that  Congress  in  establishing 
a  postal  system  must  of  necessity  determine  what  is  to  be  regarded 
as  mail  matter  and  what  is  not.  Obviously  not  everything  need 
be  transmitted  through  the  mails  unless  the  post  office  is  to  per- 
form all  the  functions  of  a  common  carrier.  This  necessity  of 
determining  what  shall  constitute  mail  matter  carries  with  it  the 
power  and  duty  of  setting  up  classifications  as  to  various  types 
of  matter.  No  positive  obligation  rests  upon  the  government  to 
carry  any  particular  class  of  articles.  Should  Congress  decide 
that  nothing  but  sealed  letters  of  a  certain  size  and  weight  may 
be  sent  through  the  mails,  there  could  be  no  doubt  of  its  con- 
stitutional authority  so  to  legislate.  The  Supreme  Court  has 
recognized  that  Congress  in  establishing  a  postal  system  may 
properly  set  up  classifications  of  matter  in  respect  to  mailing 
privileges. 

"In  establishing  such  a  system,  Congress  may  restrict  its  use 
to  letters  and  deny  it  to  periodicals ;  it  may  include  periodicals  and 
exclude  books;  it  may  admit  books  to  the  mails  and  refuse  to 
admit  merchandise;  or  it  may  include  all  of  these  and  fail  to 
embrace  within  its  regulations  telegrams  or  large  parcels  of 
merchandise,  although  in  most  civilized  countries  of  Europe  these 
are  also  made  a  part  of  the  postal  service."98 

This  power  of  classification  arises  from  the  fact  that  Congress 
creates,  owns,  and  operates  the  postal  system  and  that  in  exer- 
cising this  power  of  classification  Congress  may  properly  give 
effect  to  its  own  conceptions  of  public  policy.  Its  position  is  that 
of  a  proprietor;  and  it  is  under  no  obligation  to  lend  the  use  of 
its  property  for  purposes  which  it  regards  as  unwise  and  unde- 
sirable, nor  is  it  prohibited  from  extending  the  use  of  its  mail 
facilities  on  especially  favorable  terms  to  those  who  will  make  use 
of  them  for  the  promotion  of  constructive  ideas  of  public  policy. 
In  short,  Congress  may  not  only  discourage  certain  uses  of  the 
mails  which  it  deems  contrary  to  public  policy  but  it  may  also 
stimulate  and  encourage  other  uses  of  the  mails  which  it  regards 
as  helpful  or  beneficial  to  the  national  welfare.  From  the  prac- 
tical point  of  view,  the  latter  method  would  of  the  two  seem  to 

even  although  in  a  given  case  it  may  be  manifest  that  a  particular  exclu- 
sion is  but  arbitrary,  because  resting  on  no  discernable  distinction,  nor 
coming  within  any  discoverable  principle  of  justice  or  public  policy." 

98  Public  Clearing  House  v.  Coyne,   (1903)    194  U.  S.  497,  48  L.  Ed. 
1092,  24  S.  C.  R.  789. 


THE  NATIONAL  POLICE  POWER  423 

be  easier  of  execution  as  well  as  less  open  to  criticism ;  and 
Congress  has  employed  it  in  numerous  instances.  The  most 
conspicuous  examples  are  the  special  privileges  extended  to  peri- 
odical literature  under  the  statutes  creating  second  class  mailing 
privileges,"9  the  extension  of  the  franking  privilege  to-  the 
speeches  of  members  of  Congress  printed  in  the  Congressional 
Record,100  and  the  act  providing  for  the  free  transmission 
through  the  mails  of  reading  matter  printed  in  raised  characters 
for  the  use  of  the  blind.101 

If  it  is  true  that  the  relationship  of  the  government  to  the 
post  office  partakes  largely  of  proprietorship,  it  would  follow  that 
the  use  of  the  mail  service  by  the  individual  is  a  privilege  rather 
than  a  constitutional  right.102  This  seems  to  be  recognized  by  the 
decisions  of  the  courts  either  directly  or  by  implication.103  It 
constitutes  an  important  difference  between  the  rights  of  the 
individual  to  engage  in  interstate  commerce  and  to  use  th?  mails. 
There  is  without  question  a  constitutionally  protected  right  of 
the  ci  izen  to  engage  in  interstate  commerce,  subject,  of  course, 
to  such  rules  and  provisions  as  Congress  may  impose  by  virtue 
of  its  power  to  regulate  that  commerce.104  Congress  may  control 
the  exercise  of  that  right ;  but  it  may  not  destroy  it  entirely.105 
The  postal  facilities,  however,  come  into  being  only  at  the  dis- 
cretion of  Congress  ;  and  neither  the  refusal  of  Congress  to  create 
them  or  expand  them  nor  its  complete  withdrawal  of  them  would 
violate  an  affirmative  right  guaranteed  by  the  constitution.106 
It  was  this  distinction  between  the  relation  of  the  individual  to 
the  postal  service  and  to  interstate  commerce  which  the  Supreme 

99  Act  of  March  3,  1879,  20  Stat.  359  and  subsequent  amendments, 
"o  Act  of  March  3,  1875,  18  Stat.  at  L.  343. 

101  Act  of  April  27,  1904,  33  Stat.  at  L.  313  permits  the  free  transmis- 
sion of  literature  in  raised  characters  to  and  from  public  institutions  or 
libraries.  Act  of  Aug.  24,  1912,  37  Stat.  at  L.  551  extended  the  privilege  to 
all  periodicals  in  raised  characters  irrespective  of  destination. 

102  For  valuable  theoretical  discussion  of  distinction  between  "rights" 
and  "privileges,"  see  Hohfeld,  Fundamental  Legal  Conceptions  as  Applied 
in  Judicial  Reasoning,  (1913)  23  Yale  Law  Journal  16. 

103  People's   U.    S.   Bank  v.   Gilson,    (1905)    140  Fed.   1,   5;   Missouri 
Drug  Co.  v.  Wyman,  (1904)  129  Fed.  623. 

104  United  States  v.  Del.  &  Hudson  Co.,  (1908)   164  Fed.  215,  reversed 
on  other  grounds  in  213  U.  S.  366. 

105  There  is  no  decision  of  the  Supreme  Court  squarely  on  this  point 
since  Congress  has  never  tried  to  exercise  such  power  of  destruction.    The 
reasoning  of  the  Supreme  Court  in  United  States  v.  Del.  &  Hudson  Co., 
supra,  certainly  lends  support  to  this  view. 

ice  "A  citizen  of  the  United  States  as  such  has  a  right  to  participate  in 
foreign  and  interstate  commerce,  to  have  the  benefit  of  the  postal  laws 
.  .  .  Cooley,  Principles  of  Constitutional  Law,  273.  Italics  are  the 
writer's. 


424  MINNESOTA  LAW  REVIEW 

Court  apparently  had  in  mind  in  the  Jackson  case,  when,  after 
upholding  the  authority  of  Congress  to  exclude  lottery  circulars 
from  the  mails,  it  declared  :107 

"But  we  do  not  think  that  Congress  possesses  the  power  to 
prevent  the  transportation  in  other  ways,  as  merchandise,  of 
matter  which  it  excludes  from  the  mails." 

This  important  distinction  between  a  privilege  and  a  right 
is  one  which  is  clearly  recognized  in  our  constitutional  law ;  and 
there  is  plenty  of  precedent  and  authority  for  the  view  that  in 
dispensing  privileges  which  it  has  a  right  to  withhold  entirely 
the  government  may  classify  the  recipients  in  order  to  give  effect 
to  its  views  respecting  public  policy,  even  though  such  classifi- 
cations would  be  open  to  constitutional  attack  if  applied  to  those 
enjoying  a  constitutional  right.  In  the  disposal  of  public  lands 
Congress  may  properly  pursue  a  constructive  policy  of  encourag- 
ing homestead  development.108  Aliens  seeking  admission  to  the 
United  States  or  seeking  the  privileges  of  American  citizenship 
may  be  classified  by  Congress  in  ways  which  would  seem  arbitrary 
if  the  persons  subjected  to  such  discriminations  had  any  constitu- 
tional right  to  demand  of  this  government  the  thing  they  were 
seeking.109  It  is  well  established  that  since  no  one  has  a  right  to 
perform  work  for  the  United  States  government  Congress  may 
provide  that  those  who  do  enjoy  that  privilege  may  be  subjected 
to  the  requirement  of  the  eight-hour  day  for  employees,110  al- 
though the  right  of  a  state  to  establish  a  general  eight-hour  day 
for  all  labor  as  an  exercise  of  the  police  power  must  still  be 
regarded  as  open  to  the  most  serious  question.111  The  establish- 
ment of  similar  classifications  by  the  various  states  in  respect  to 
public  work  has  been  sustained.112  The  United  States  Supreme 
Court  has  held,  in  fact,  that  while  a  state  may  not  under  its 

i"  (1877)  96  U.  S.  727,  735,  24  L.  Ed.  877. 

108  See  the  Homestead  Act  of  May  20,  1862,  and  subsequent  legislation 
of  similar  nature. 

109  See  pamphlet,   "Naturalization   Laws   and   Regulations"   revised   to 
October  10,  1919,  published  by  United  States  Dept.  of  Labor.     It  is  not 
intended  to  suggest,  however,  that  aliens  applying  for  citizenship  may  not 
be  classified  along  lines  much  more  arbitrary  than  would  be  permissible 
if  they  were  citizens  applying  for  some  other  privilege. 

110  Act  of  Aug.  1,  1892,  27  Stat.  at  L.  340,  upheld  in  Ellis  v.  United 
States,  (1906)  206  U.  S.  246.  51  L.  Ed.  1047,  27  S.  C.  R.  600. 

111  This  would  seem  to  be  suggested  by  the  fact  tnat  regulations  of 
the  hours  of  labor  are  still  upheld,  if  at  all,  mainly  upon  grounds  of  pro- 
tection to  health.     See  Bunting  v.  Oregon,    (1917)   243  U.  S.  426,  37  S. 
G.  R.  435,  61   L.  Ed.  830  upholding  the  Oregon  Ten  Hour  Law.     It  is 
doubtful  if  an  eight  hour  law  could  be  sustained  on  this  basis. 

"2  Atkin  v.  Kansas,  (1903)   191  U.  S.  207,  24  S.  C.  R.  124,  48  L.  Ed. 
148. 


THE  NATIONAL  POLICE  POWER  425 

police  power  prevent  the  employment  of  aliens  by  private  em- 
ployers of  labor,113  it  may  discriminate  against  aliens  when  it 
comes  to  work  done  for  the  state  itself.114  The  right  to  contract 
freely  with  other  persons  for  the  performance  of  labor  is  a  right 
which  cannot  be  denied  by  the  state  ;  but  the  right  to  be  employed 
on  the  public  work  of  the  state  itself  is  not  a  right  at  all,  but  a 
privilege. 

Enough  has  been  said  to  make  clear  that  the  power  of  Con- 
gress over  the  postal  system  is  broader  and  more  complete  than 
over  an  institution  or  a  system  in  respect  to  which  its  relation  is 
not  that  of  creator,  owner,  and  operator.  It  is  equally  obvious 
that  the  so-called  right  of  the  individual  to  use  the  mails  is  not 
a  right  guaranteed  to  him  by  the  constitution,  such  as  the  right 
to  engage  in  interstate  commerce  or  the  right  to  be  tried  for 
crime  only  by  a  jury  of  his  peers;  it  is  a  privilege  the  length 
and  breadth  of  which  is  determined  by  a  congressional  discretion 
broad  enough  to  allow  general  considerations  of  public  policy 
to  dictate  the  terms  upon  which  it  may  be  enjoyed. 

It  would,  however,  be  entirely  erroneous  to  assume  that  be- 
cause Congress  may  for  reasons  of  public  policy  set  up  classi- 
fications as  to  the  purposes  for  which  it  is  willing  to  allow  the 
postal  service  to  be  used,  it  may  make  any  and  all  classifications 
it  chooses,  no  matter  how  arbitrary.  The  fact  that  Congress  is 
under  no  constitutional  compulsion  to  create  a  postal  system  at 
all  does  not  mean  that  it  may  refuse  to  transmit  in  the  system 
it  has  created  the  literature  of  one  religious  sect,  or  a  particular 
political  party.  If  it  allowed  the  mailing  of  letters  at  all,  it 
could  not  exclude  love-letters  and  admit  letters  relating  to  the 
business  of  coal-mining.  This  is,  of  course,  merely  to  say  that 
although  in  the  exercise  of  its  power  over  the  postal  system  Con- 
gress may  give  effect  to  its  views  of  public  policy,  it  must  at  all 
times  keep  its  legislation  within  certain  constitutional  limits.  The 
character  and  operation  of  those  constitutional  limits  may  now 
be  examined. 

CONSTITUTIONAL  LIMITATIONS  UPON  LEGISLATION"* 
In  classifying  the  uses  and  purposes  to  which  it  is  willing  to 
extend  the  privileges  of  the  mails,  Congress  is  subject  to  two  im- 


v.  Raich,  (1915)  239  U.  S.  33,  36,  S.  C.  R.  7,  60  L.  Ed.  131. 
v.  McCall,   (1915)  239  U.  S.  175,  60  L.  Ed.  200,  36  S.  C.  R. 
78. 

115  The    constitutional    prohibition    in    the    fourth    amendment    against 
unreasonable  searches  and  seizures  (supra,  p.  410)  is  of  course  a  limitation 


426  MINNESOTA  LAW  REVIEW 

portant  constitutional  limitations.  One  of  these  is  the  prohibition 
against  the  passing  of  any  law  abridging  the  freedom  of  religion 
or  the  press  ;116  the  other  is  the  more  general  prohibition  against 
deprivation  of  liberty  or  property  without  due  process  of  law.117 

1.  Freedom  of  Religion  and  the  Press.  It  must  be  borne  in 
mind  that  Congress  is  forbidden  by  the  first  amendment  to  the 
constitution  not  merely  to  interfere  by  direct  and  positive  action 
with  freedom  of  religion  and  of  the  press,  but  it  is  forbidden  also 
to  use  its  granted  powers  in  such  a  way  as  to  abridge  those 
fundamental  rights.118  It  does  not  matter,  therefore,  how  abso- 
lute or  unlimited  'the  power  of  Congress  over  the  postal  service 
might  be,  that  power  cannot  be  exercised  to  abridge  religious 
freedom  or  to  limit  the  freedom  of  the  press.  It  does  not,  how- 
ever, follow  that  no  restraint  may  be  placed  upon  the  circulation 
of  matter  through  the  mails  because  of  a  possible  abridgment  of 
these  rights.  Neither  freedom  of  religion  nor  freedom  of  the 
press  is  an  absolute  and  unqualified  right  which  may  be  set  up 
against  every  conceivable  governmental  encroachment.  They  are 
both  alike  subject  to  reasonable  restrictions  in  the  interests  of 
the  public  safety  and  morals  and  general  welfare.119  Religion 
may  not  act  as  a  cloak  to  protect  polygamy  from  being  attacked 
as  subversive  of  public  morals ;  and  the  exclusion  from  the  mails 
of  matter  designed  to  promote  the  spread  of  polygamy  on 
grounds  of  religion  could  no  more  be  attacked  as  an  abridgment 
of  religious  freedom  than  could  a  direct  law  which  suppressed 
polygamy  entirely  as  immoral  be  attacked  as  such  an  abridg- 
ment.120 So  also  the  same  power  which  justifies  the  penalizing 
of  treasonable  or  seditious  utterances  or  publications  would  nat- 
urally extend  to  the  denial  of  mail  facilities  to  matter  of  this  char- 
acter, nor  could  there  be  alleged  any  interference  with  the 
freedom  of  the  press.121 

upon  every  exercise  of  the  postal  power.  This  point  need  not  be  further 
discussed  as  it  has  no  peculiar  bearing  upon  the  topic  under  consideration. 

116  "Congress  shall .  make  no  law  respecting  an  establishment  of  reli- 
gion, or  prohibiting  the  free  exercise  thereof ;  or  abridging  the  freedom 
of  speech  or  of  the  press.  .    .    ."    U.  S.  Const.  Amendment  I. 

117  "Nor  shall  any  person  ...  be  deprived  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law."   U.  S.  Const.  Amend.  V. 

118  Monogahela    Navigation    Co.   v.    United    States,    (1893)    148   U.   S. 
312,  336,  13  S.  C.  R.  622,  37  L.  Ed.  463. 

napreund,  Police  Power,  Sees.  467,  468;  Willoughby,  Constitution,  II, 
841 ;  Hall,  Constitutional  Law,  90. 

120  Reynolds  v.  United  States,  (1878)  98  U,  S.  145,  163,  25  L.  Ed.  244. 

121  In  Schenck  v.  United  States,  (1919)  249  U.  S.  47,  39  S.  C.  R.  247, 
the  Espionage  Act  was  upheld  by  the  Supreme  Court  as  against  trie  criti- 


THE  NATIONAL  POLICE  POWER  427 

If,  however,  Congress  should  attempt  to  exclude  from  the 
mails  the  literature  devoted  to  the  propagation  of  Christian 
Science  or  Catholicism,  or  if  it  should  enact  that  sectarian  jour- 
nals should  be  transmitted  free  or  at  lower  rates  than  other 
religious  periodicals,  there  is  no  doubt  but  that  such  legislation 
would  be  held  to  violate  the  freedom  of  religion.122  In  like 
manner,  if  a  Republican  Congress  should  exclude  Democratic 
campaign  literature  from  the  mails  or  refuse  to  carry  it  on  equal 
terms  with  other  matter  of  the  same  class,  there  would  no  less 
certainly  be  a  denial  of  freedom  of  the  press.  What  the  precise 
outside  limits  may  be  on  the  power  of  Congress  to  make  postal 
regulations  affecting1  the  two  fundamental  rights  under  discus- 
sion is  a  question  which  is  not  easy  to  answer.  It  is  a  question, 
however,  a  detailed  discussion  of  which  is  beyond  the  limits  of 
this  article.123  It  may  in  general  be  said  that  postal  regulations 
excluding  matter  from  the  mails  or  establishing  a  preferred  class 
of  mail  matter  and  founded  upon  a  sound  basis  of  public  policy 
cannot  be  successfully  attacked  under  the  first  amendment  unless 
there  is  manifest  in  such  legislation  an  intention  unjustifiably  to 
abridge  the  freedom  of  religion  or  of  the  press  or  unless  such 
would  be  the  natural  result  of  its  operation.124 

2.  Due  Process  of  Law.  While  the  declaration  in  the  fifth 
amendment  that  Congress  shall  not  deprive  any  person  of  life, 
liberty,  and  property  without  due  process  of  law  is  less  definite 
in  meaning  than  the  prohibitions  upon  congressional  power  which 
have  just  been  discussed,  it  is  a  no  less  effective  limitation  upon 
Congress  in  the  exercise  of  all  its  delegated  powers  including  the 
postal  power.  It  might  on  casual  thought  be  urged  that  since  the 
government  is  under  no  obligation  to  provide  any  mail  facilities 
at  all  for  the  use  of  the  people,  no  person  could  conceivably 

cism  among  others  that  it  unduly  abridged  freedom  of  speech.  No  case 
involving  the  exclusion  of  seditious  publications  from  the  mails  has  thus 
far  been  decided  by  the  Supreme  Court. 

122  "There  is  not  complete  religious  liberty  where  any  one  sect  is  fav- 
ored by  the  state  and  given  an  advantage  by  law  over  other  sects."  Cooley, 
Constitutional  Limitations  (7th  Ed.)  663. 

123  Cooley,   Constitutional  Limitations,   Ch.   12 ;   Rogers,   op.   cit.  98  ff. 
See  also  Rogers,  "Federal  Interference  with  the  Freedom  of  the  Press," 
23  Yale  Law  Journal  559.    A  valuable  discussion  of  this  point  is  also  con- 
tained in  Chafee,  Freedom  of  Speech  in  War  Time,   (1919)   32  Harvard 
Law  Review  932. 

124  <<in  excluding  various  articles   from  the  mails,  the  object  of  Con- 
gress has  not  been  to  interfere  with  the  freedom  of  the  press,  or  with 
any  other  rights  of  the  people ;  but  to  refuse  its  facilities  for  the  distribu- 
tion of  matter  deemed  injurious  to  the  public  morals."     Ex  parte  Jackson, 
(1877)  96  U.  S.  727,  24  L.  Ed.  877. 


428  MINNESOTA  LAW  REVIEW 

claim  that  he  had  been  deprived  of  liberty  or  property  by  a  statute 
which  forbade  him  the  right  to  use  the  mails  for  a  specified 
purpose.  This  theory  rests  upon  the  supposed  axiom  that  the 
greater  power  must  include  the  lesser;  and  that  the  power  to 
withhold  all  mail  privileges  must  therefore  include  the  power  to 
withhold  some  or  all  of  those  privileges  for  any  reason  whatso- 
ever or  for  no  reason  at  all.  There  is  a  certain  plausibility  to  this 
argument  which  arises  from  the  fact  that  a  private  person  en- 
gaged in  a  purely  private  business  certainly  does  possess  exactly 
this  power  and  may  discriminate  amongst  his  patrons  or  among 
those  to  whom  he  desires  to  extend  any  privilege  in  any  manner 
which  seems  to  him  desirable.125 

It  is  hardly  necessary  to  point  out,  however,  that  the  govern- 
ment as  a  dispenser  of  privileges  which  may  constitutionally  be 
withheld  does  not  enjoy  the  arbitrary  and  uncontrolled  discretion 
just  alluded  to.  While  a  person  may  not  be  in  a  position  to 
compel  the  government  to  extend  a  privilege  at  all,  he  does  have 
a  constitutional  right  to  enjoy  it  on  equal  terms  with  others  who 
stand  in  the  same  general  relation  to  the  government  as  he  does. 
It  may  not  be  a  "liberty"  within  the  meaning  of  the  due  process 
clause  to  be  able  to  mail  a  letter  or  a  book  provided  nobody  else 
can  do  so.  But  if  the  government  has  created  facilities  for 
mailing  letters  and  books  it  is  a  "liberty"  within  the  meaning 
of  the  due  process  clause  to  use  those  facilities  on  equal  terms 
with  other  persons  in  the  same  class.126  It  is  in  this  sense  of  the 
word  that  the  use  of  the  postal  system  has  been  declared  to  be 
part  of  the  "liberty"  secured  by  the  fourteenth  amendment  against 
deprivation  without  due  process  of  law.127  In  short,  the  due 
process  clause  operates  as  a  limitation  upon  the  power  of  Con- 

125  A  soon  as  a  business  comes  to  take  on  a  public  character  or  be- 
comes "affected  with  a  public  interest"  this  arbitrary  power  of  the  pro- 
prietor to  discriminate  amongst  his  patrons  ceases  to  exist. 

126  it  seems  clear  that  the  "equal  protection  of  the  law"  or  protection 
against  arbitrary  discrimination  is  an  essential  part  of  the  guarantee  of 
due  process   of   law.     "Due  process   of  law  within   the  meaning  of   the 
Amendment  is  secured  if  the  laws  operate  on  all  alike,  and  do  not  subject 
the  individual   to  an   arbitrary  exercise  of   the  powers   of   government." 
Giozza  v.  Tiernan,   (1893)   148  U.  S.  657,  13  S.  C.  R.  721,  37  L.  Ed.  599. 
Freund,  Police  Power,  Sec.  611.    See  6  Ruling  Case  Law,  Sec.  367,  437;  12 
Corpus  Juris  1190. 

^Allgeyer  v.  Louisiana,  (1897)  165  U.  S.  578,  41  L.  Ed.  832,  17  S. 
C.  R.  427.  Cf.  Statement  in  Hoover  v.  McChesney,  (1897)  81  Fed.  472. 
"We  think  the  right  to  use  the  mails  though  in  degree  much  less  valuable 
than  the  use  of  the  transportation  lines,  would  be  equally  a  property  right, 
and  one  which  could  not  be  taken  away  without  due  process  of  law." 


THE  NATIONAL  POLICE  POWER  429 

gress  to  make  classifications  which  are  arbitrary  in  character  in 
respect  to  the  enjoyment  of  mail  privileges.128 

This  calls  for  a  brief  discussion  of  what  sort  of  classification 
is  to  be  regarded  as  arbitrary;  for  quite  obviously  many  classi- 
fications are  not  only  legitimate  but  necessary.  While  there  has 
been  a  great  deal  of  difficulty  in  deciding  in  concrete  cases  the 
precise  character  of  the  equality  of  treatment  to  which  persons 
are  constitutionally  entitled,  there  is  substantial  agreement  with 
reference  to  certain  tests  by  which  the  validity  of  statutory 
classifications  is  to  be 'judged.  No  one  will  question,  in  the  first 
place,  that  no  classification  would  be  constitutional  in  which  the 
members  of  the  class  singled  out  for  distinctive  treatment  did 
not  differ  in  some  substantial  manner  from  those  not  included  in 
such  class.129  Congress  is  not  apt  to  violate  this  principle  in 
classifying  mailing  privileges.  But  if  one  could  imagine  a  re- 
quirement that  letters  going  from  New  York  to  Chicago  should 
pay  three  cents  postage  while  those  going  from  Chicago  to  New 
York  should  pay  two  cents  postage,  or  a  requirement  that  morn- 
ing newspapers  should  enjoy  postal  privileges  denied  to  evening 
papers,  there  would  be  no  hesitancy  in  concluding  that  such 
classifications  rested  upon  no  discernible  differences  between 
those  inside  and  outside  the  class  created.  In  the  second  place, 
there  is  equally  unanimous  agreement  that  when  a  class  is  created 
by  law,  the  basis  of  classification  must  bear  some  reasonable 
relation  to  the  object  sought  to  be  accomplished  by  the  act  which 
creates  it.130  Congress  could  not,  for  example,  provide  that 
newspapers  printed  in  foreign  languages  should  be  forbidden  to 
circulate  obscene  matter  but  that  papers  printed  in  English  should 
be  exempt  from  such  prohibition.  Such  discrimination  would  be 
void  because  the  basis  of  the  classification,  namely,  the  language 

128  This  view  is  supported  by  analogy  in  the  rule  which  restricts  the 
right  of  states  or  municipalities  to  discriminate  in  favor  of  union  labor 
employed  on  public  work.  This  is  held  a  denial  of  the  equal  protection 
of  the  law  even  though  no  one  has  a  right  to  work  for  the  state.  Miller 
v.  Des  Moines,  (1909)  143  la.  409,  122  N.  W.  226,  21  Ann.  Cas.  207.  23 
L.  R.  A.  (N.S.)  815;  Fiske  v.  People,  (1900)  188  111.  206,  58  N.  E.  985. 
52  L.  R.  A.  291. 

120  Seaboard  Air  Line  Ry.  v.  Seegars,  (1907)  207  U.  S.  73.  52  L.  Ed. 
108,  28  S.  C.  R.  28;  Deyol  v.  Superior  Court.  (1903)  140  Cal.  476,  74 
Pac.  28,  98  A.  S.  R.  73;  Ritchie  v.  Wyman,  (1910)  244  111.  509,  91  N.  E. 
695,  27  L.  R.  A.  (N.S.)  994. 

130  American  Sugar  Refining  Co  v.  Louisiana,  (1900)  179  U.  S.  89,  45 
L.  Ed.  102,  21  S.  C.  R.  43;  Atchison,  etc.,  R.  Co.  v.  Matthews,  (1899)  174 
U.  S.  96,  105,  43  L.  Ed.  909.  19  S.  C.  R.  609;  Kane  v.  Erie  R.  R.  Co., 
(1904)  133  Fed.  681,  67  C.  C.  A.  653,  68  L.  R.  A.  788;  Chicago,  etc..  R. 
Co.  v.  Westly,  (1910)  178  Fed.  619,  102  C.  C.  A.  65. 


430  MINNESOTA  LAW  REVIEW 

in  which  newspapers  are  printed,  bears  no  relation  whatever  to 
the  purpose  which  the  statute  seeks  to  serve,  the  suppression  of 
the  circulation  of  indecent  matter  through  the  mails.  It  is  not 
enough  that  the  distinction  which  marks  the  line  of  classification 
is  one  which  may  properly  be  made  the  basis  of  class  legislation ; 
there  must  be  a  relevancy  between  the  basis  of  the  classification 
and  the  particular  purpose  of  the  statute  which  creates  that 
classification.131 

These  two  protections  against  arbitrary  class  legislation  have, 
however,  a  broader  application  to  the  classification  of  mailing 
privileges  than  the  somewhat  extreme  illustrations  used  above 
would  suggest.  It  must  at  all  times  be  borne  in  mind  that  the 
power  which  Congress  is  exercising  in  setting  up  these  classi- 
fications is,  after  all,  the  power  derived  from  the  clause  author- 
izing the  establishment  of  post  offices  and  post  roads.  Statutes 
which  aim  to  protect  the  national  health,  safety,  and  morals  by 
excluding  various  things  from  the  mails  are  postal  regulations 
first  and  police  regulations  second.  It  follows,  therefore,  that 
when  a  person  is  forbidden  to  use  the  postal  service  for  a  certain 
purpose,  he  has  a  right  to  demand  that  the  basis  of  classification 
bear  a  reasonable  and  substantial  relationship  not  primarily  to 
the  general  welfare  of  the  country  but  to  such  aspects  of  the 
general  welfare  of  the  country  as  may  properly  be  affected  by 
Congress  in  the  exercise  of  its  postal  power.  When  the  Supreme 
Court  declared  that  a  postal  regulation  in  order  to  be  constitu- 
tional must  treat  alike  "those  who  stand  in  the  same  relation  to 
the  government,"132  it  meant  the  "same  relation"  in  respect  to 
the  power  of  the  government  to  exercise  the  postal  authority  and 
not  in  respect  to  liability  to  military  service,  the  payment  of 
federal  taxes,  or  any  other  irrelevant  consideration. 

This  leads,  then,  to  a  brief  consideration  of  what  the  tests 
of  relevancy  must  be  between  the  postal  power  of  Congress  and 
the  classifications  of  postal  privileges  which  Congress  may 
set  up  for  the  purposes  of  formulating  national  public  policy  and 
exercising  a  national  police  power.  There  can  be  no  doubt  that 
any  classification  which  aimed  at  the  protection  of  the  postal 
system  from  injury  or  obstruction  or  was  designed  to  promote 
its  efficiency  would  rest  upon  a  basis  intimately  and  immediately 

"i  State  v.  Loomis,  (1893)  115  Mo.  307,  22  S.  W.  350,  21  L.  R.  A.  789; 
State  v.  Currens,  (1901)  111  Wis.  431,  87  N.  W.  561,  56  L.  R.  A.  252. 

132  Public  Clearing  House  v.  Coyne,  (1903)  194  U.  S.  497,  48  L.  Ed. 
1092,  24  S.  C.  R.  789. 


THE  NATIONAL  POLICE  POWER  431 

connected  with  the  postal  power.  It  is  equally  certain  that  dis- 
criminations which  sought  to  protect  the  public  from  the  circu- 
lation through  the  mails  of  noxious  or  dangerous  matter  or  from 
the  consummation  of  injurious  transactions  which  thrive  on 
postal  facilities  would  also  bear  a  definite  relation  to  the  postal 
power.  In  neither  of  these  cases  could  one  complain  that  he  had 
been  subjected  to  discrimination  the  basis  of  which  was  irrelevant 
to  the  postal  power.  It  is  the  belief  of  the  writer  that  Congress 
may  go  still  further  and  may  set  up  classifications  in  respect  to 
the  use  of  postal  facilities  which  are  based  merely  upon  con- 
gressional ideas  of  public  policy  when  that  public  policy  is  one 
which  is  related  to  the  development  of  functions  which  a  postal 
system  may  naturally  and  reasonably  be  expected  to  perform  or 
of  interests  which  it  may  properly  be  used  to  promote.  The 
postal  service  must  be  regarded  not  merely  as  an  agency  which 
exists  for  the  purpose  of  performing  messenger  boy  service  for 
individuals  but  as  an  institution  which  actively  and  positively 
promotes  the  spread  of  intelligence  as  to  current  affairs,  as  well 
as  to  other  matters  of  general  interest.  This  is  the  basis  upon 
which  the  special  second  class  mail  privileges  are  to  be  justified, 
although  the  Supreme  Court  has  expressed  its  belief  that  the 
conferring  of  these  privileges  was  "at  least  in  form,  a  discrimi- 
nation against  the  public  generally."133  In  other  words,  the  dis- 
crimination rested  upon  a  basis  definitely  related  to  a  public 
policy  or  benefit  which  it  was  natural  and  proper  for  Congress  to 
promote  through  its  postal  system.  It  was  in  this  light  that  the 
Supreme  Court  viewed  the  regulations  imposed  upon  newspapers 
and  periodicals  by  the  Newspaper  Publicity  Act  of  19 12.134  One 
of  the  provisions  of  this  statute  will  be  discussed  at  a  later 
point;135  but  it  may  be  noted  here  that  the  prohibitions  placed 
upon  publications  enjoying  second  class  mailing  privileges  against 
printing  editorial  or  other  reading  matter  for  which  money  is 
received  without  marking  it  "advertisement"  are  regarded  by 
the  Court  as  part  and  parcel  of  the  congressional  policy  that  the 
privileges  thus  extended  to  publications  should  be  used  primarily 

i^  Lewis  Publishing  Co.  v.  Morgan,  (1913)  229  U.  S.  288,  304,  57  L. 
Ed.  1190,  33  S.  C  R.  867. 

It  is  on  this  basis  that  the  special  mailing  privileges  accorded  liter- 
ature for  the  blind  (supra p.  1423)  may  be  sustained:  They  serve  to  aid  the 
dissemination  of  intelligence  amongst  a  group  otherwise  restricted  in 
respect  to  such  advantages. 

13*  Act  of  August  24,  1912,  37  Stat.  at  L.  553. 

135  Infra,  p.  438. 


432  MINNESOTA  LAW  REVIEW 

for  the  "dissemination  of  information  regarding  current  events" 
and  only  incidentally  for  the  circulation  of  advertising  matter. 
It  is,  therefore,  the  kind  of  requirement  that  may  properly  be 
imposed.136  But  should  Congress  attempt  to  promote  in  this 
manner  a  public  policy  unrelated  to  the  natural  and  customary 
functions  and  purposes  of  the  postal  system,  a  classification  so 
founded  would  be  arbitrary  and  unreasonable  and  would  in  con- 
sequence violate  due  process  of  law, — as  well  as  be  an  exercise 
by  Congress  of  a  power  not  conferred  by  the  constitution. 

By  way  of  summary  it  may  be  suggested  that  by  classifying 
the  uses  to  which  it  will  allow  the  mails  to  be  put,  Congress 
exercises  a  generous  police  power  for  the  protection  of  the  public 
welfare  from  such  evils  as  would  be  fostered  and  promoted  by 
an  entirely  unrestricted  use  of  postal  privileges.  It  also  enables 
Congress  to  promote  a  constructive  public  policy  in  respect  to 
such  matters  as  fall  within  the  range  of  national  interests  which 
the  postal  system  may  properly  be  expected  to  serve.  In  short, 
these  classifications  may  be  established  to  prevent  the  misuse  and 
to  promote  the  most  beneficial  use  of  the  postal  service.  But  any 
discrimination  in  respect  to  mail  privileges,  no  matter  how  com- 
mendable in  purpose,  which  is  not  based  upon  some  actual  dif- 
ference between  the  classes  created  in  their  relation  not  to  the 
national  welfare  but  to  the  postal  service,  would  be  arbitrary 
and  unconstitutional. 

III.  REGULATIONS  DENYING  THE  USE  OF  MAILS  FOR  PURPOSES 
OF  VIOLATING  OR  EVADING  STATE  LAW 

It  would  seem  fairly  clear  that  if  Congress  may  with  propriety 
classify  the  uses  to  which  the  postal  system  may  be  put  for  the 
purposes  which  have  just  been  examined,  it  would  be  equally 
legitimate  to  provide  that  those  facilities  should  not  be  used  for 
the  purpose  of  evading  or  violating  state  law.  Legislation  anal- 
ogous in  character  has  been  sustained  as  a  proper  exercise  by 
Congress  of  the  power  to  regulate  interstate  commerce,137  upon 
principles  applying  with  equal  or  greater  force  to  postal  power. 

The  first  proposal  to  adopt  such  a  regulation  of  the  mails 
seems  to  be  that  made  by  Calhoun  at  the  time  of  the  famous 

136  Cf .   statement  of   Cooley :    "The  power  to   establish   postoffices   in- 
cludes everything  essential  to  a  complete  postal  system  under  federal  con- 
trol and  management,  and  the  power  to  protect  the  same  by  providing  for 
the  punishment  as  crimes  of  such  acts  as  would  tend  to  embarrass  or  de- 
feat the  purpose  had  in  view  in  their  establishment."    Principles  of  Con- 
stitutional Law,  95. 

137  The  Webb-Kenyon  Act.    See  Cushman,  3  MINNESOTA  LAW  REVIEW 
406  ff. 


THE  NATIONAL  POLICE  POWER  433 

controversy  in  1836  as  to  the  power  of  Congress  to  exclude  from 
the  mails  incendiary  and  abolitionist  publications.138  Believing 
that  the  absolute  exclusion  from  the  mails  of  the  objectionable 
matter  would  abridge  the  freedom  of  the  press,  Calhoun  proposed 
it  should  be  made  unlawful  for  any  postmaster  to  receive  and 
send  on  through  the  mails  any  publication  addressed  to  a  desti- 
nation in  which  its  circulation  was  unlawful.  It  was  made  a 
penal  offense  to  deliver  such  mail  matter  to  any  person  not 
authorized  by  the  local  authorities  to  receive  it.139  This  bill  was 
amended  so  as  to  make  it  unlawful  for  any  postmaster  to  deliver 
publications  the  circulation  of  which  was  forbidden  by  local 
law.140  The  bill  failed  of  passage;  but  the  discussions  in  Con- 
gress upon  its  constitutionality  were  long  and  interesting.141 

It  has  already  been  seen  that  the  second  statute  excluding 
matter  relating  to  lotteries  from  the  mails  confined  its  prohibition 
to  "letters  or  circulars  concerning  illegal  lotteries,  so-called  gift 
concerts,  or  other  similar  enterprises."142  The  purpose  here 
seems  to  have  been  to  make  the  illegality  of  the  transmission  of 
this  matter  contingent  upon  the  illegality  under  state  law  of  the 
enterprise  to  which  it  related.  Such  transmission  would  be  un- 
lawful even  though  lotteries  might  not  be  prohibited  either  in 
the  state  in  which  the  circulars  were  mailed  or  in  the  state  into 
which  they  were  sent.  In  other  words,  the  law  would  be  violated 
by  sending  from  one  state  to  another  in  both  of  which  lotteries 
were  lawful,  matter  relating  to  a  lottery  in  a  remote  state  where 
such  an  enterprise  was  forbidden.  This  is  not  a  case,  therefore, 
in  which  matter  is  excluded  from  the  mails  because  of  the  ille- 
gality of  its  origin143  nor  because  it  is  to  be  used  for  unlawful 
purposes  at  its  destination,144  but  because  the  enterprise  which 

138  On  December  2,  1835,  President  Jackson  had  sent  a  message  to 
Congress  urging  the  passing  of  legislation  to  prevent  the  circulation 
through  the  mails  in  the  slave  states  of  abolitionist  literature.  It  was 
felt  that  such  reading  matter  might  stir  up  slave  insurrection.  Richard- 
son, Messages  and  Papers  of  the  Presidents,  III,  177.  This  called  forth 
extended  discussion  of  the  entire  problem. 

13°  12  Debates  of  Cong.  383. 

«°  12  Debates  of  Cong.  1720. 

i«12  Debates  of  Cong.  26-23,  1103-1108,  1136-1153,  1155-1171.  For  a 
summary  of  this  discussion  see  Rogers,  op.  cit.,  103-115,  Willoughby, 
op.  cit.,  II,  786. 

"2  Act  of  June  8,  1872,  17  Star,  at  L.  283. 

143  For  legislation  based  on  this  principle  see  the  Lacey  Act  of  May 
25,  1900,  31  Stat.  at  L.  188,  which  excludes  from  interstate  commerce 
game  killed  in  violation  of  state  law.  See  Cushman,  op  cit,  3  MINNE- 
SOTA LAW  REVIEW  408. 

i*4  As  is  the  case  in  the  Webb-Kenyon  Act  and  the  act  excluding  liquor 
advertisements  from  the  mails  when  addressed  to  states  forbidding  their 
circulation.  See  note  146  infra. 


434  MINNESOTA  LAW  REVIEW 

certain  states  have  forbidden  is  of  such  a  character  that  it  thrives 
definitely  and  immediately  upon  the  circulation  through  the  mails 
of  matter  advertising  and  promoting  it,  no  matter  what  the  pre- 
cise locality  may  be  in  which  that  circulation  takes  place.  The  act 
would,  therefore,  seem  to  fall  squarely  within  the  general  prin- 
ciple of  the  legislation  aimed  to  prevent  the  mails  being  used  as 
an  agency  for  the  violation  of  state  law. 

Finally  Congress  has  applied  this  same  principle  in  its  recent 
act  making  unlawful  the  sending  by  mail  of  liquor  advertisements 
into  states  in  which  it  is  unlawful  to  advertise  or  solicit  orders 
for  intoxicating  liquor.145  While  this  act  differs  somewhat  from 
the  Webb-Kenyon  Act,  the  question  of  its  constitutionality  prob- 
ably would  be  settled  by  the  doctrine  of  the  case  in  which  the 
earlier  legislation  was  sustained.146  Its  constitutionality  has  not 
thus  far  been  questioned.147 

IV.     PROPOSALS  THAT  CONFORMITY  TO  GENERAL  POLICE  REGU- 
LATIONS BE  MADE  PRICE  OF  ENJOYMENT 
OF  MAIL  FACILITIES 

In  the  discussion  thus  far  there  have  been  considered  the 
various  classifications  of  postal  privileges  based  upon  the  nature 
of  the  matter  excluded  or  the  character  of  the  uses  to  which  the 
postal  facilities  were  to  be  put.  A  discussion  of  the  police  power 
which  Congress  may  exercise  under  the  postal  clause  would  be 
incomplete  without  some  comment  upon  the  proposals  which  have 
sometimes  been  made  that  postal  facilities  should  be  withheld 
entirely  or  in  large  part  from  persons  who  would  not  conform 
to  various  congressional  mandates  in  respect  to  public  policy  and 
national  welfare.  It  is  perfectly  obvious  that  there  is  a  great 
difference  between  forbidding  any  person  to  send  obscene  litera- 
ture through  the  mails  and  forbidding  any  person  who  publishes 

145  Act  of  March  3,  1917,  39  Stat.  at  L.  1069. 

146  The  Webb-Kenyon    Act    made    it    unlawful    to    ship   intoxicating 
liquors  in  interstate  commerce  which  are  "intended,  by  any  persons  inter- 
ested therein,  to  be  received,  possessed,  sold,  or  in  any  manner  used"  in 
violation   of   the  laws  of  the   state  of  their  destination.     There  was  no 
penalty,  however,  for  violation ;  violators  merely  being  placed  at  the  mercy 
of  the  state  authorities.     Violation  of  the  Liquor  Advertisement  Act  is 
made  a  crime  against  the  United  States  punishable  by  fine  or  imprison- 
ment.   The  validity  of  the  Webb-Kenyon  Act  was  upheld  by  the  Supreme 
Court  in  Clark  Distilling  Co.  v.  Western  Maryland  Ry  Co.,  (1917)  242  U. 
S.  31,  61  L.  Ed.  326.  37  S.  C.  R.  180.     See,  Cushman,  op  cit.,  3  MINNE- 
SOTA LAW  REVIEW  406  ff. 

147  For  discussion  of  power  of  states  to  pass  laws  preventing  various 
uses  of  the  United  States  mails,  see  Rogers,  op.  cit.,  Ch.  5. 


THE  NATIONAL  POLICE  POWER  435 

obscene  literature  to  use  the  mails  for  any  purpose  whatsoever.  In 
the  first  case  Congress  prevents  a  misuse  of  postal  facilities ;  in  the 
second  case  Congress  withholds  postal  privileges  as  a  sort  of  pen- 
alty for  non-compliance  with  the  congressional  policy  for  the 
suppression  of  obscene  literature.  It  makes  conformity  to  cer- 
tain police  requirements  a  condition  precedent  to  the  enjoyment 
of  the  use  of  the  mails. 

While  no  statute  of  this  type  has  yet  been  passed  by  Congress, 
the  desirability  of  enacting  such  laws  has  more  than  once  been 
urged  in  recent  years  by  those  whose  views  as  to  the  constitu- 
tional propriety  of  such  legislation  should  be  accorded  respectful 
consideration.  Perhaps  the  most  conspicuous  of  these  proposals 
and  the  one  most  widely  discussed  was  the  one  made,  by  the  Pujo 
Money  Trust  Committee  in  1913.  This  congressional  committee 
proposed  as  a  means  of  regulating  and  controlling  stock  exchange 
speculation  "that  Congress  prohibit  the  transmission  by  the  mails 
or  by  telegraph  or  telephone  from  one  state  to  another  of  orders 
to  buy  or  sell  quotations  or  other  information  concerning  trans- 
actions on  any  stock  exchange,  unless  such  exchange  shall  be  a 
body  corporate  of  the  state  or  territory  in  which  it  is  located" 
and  unless  it  comply  with  other  specified  conditions.148  While 
the  denial  of  mail  privileges  herein  proposed  was  not  absolute, 
it  was  nevertheless  very  substantial.  The  substance  and  effect  of 
the  proposed  law  was  to  penalize  stock  exchanges  which  refused 
to  incorporate  under  the  laws  of  any  state  by  denying  them  mail 
privileges  which  were  accorded  to  others.  One  writer  has  pro- 
posed a  law  similar  in  principle  which  would  exclude  from  the 
mails  papers  of  any  corporation  which  refused  to  make  full  re- 
ports to  the  federal  government  respecting  those  aspects  of  its 
affairs  in  regard  to  which  Congress  desired  full  publicity.140 
Dean  J.  P.  Hall  expresses  the  view  that  "as  a  last  resort,  Con- 
gress might  deny  the  privileges  of  the  mails  to  businesses,  which, 
though  operating  wholly  within  a  state,  persisted  in  practices  that 
Congress  within  a  reasonable  discretion  saw  fit  to  disapprove."150 

148  Majority   Report   of   the   Committee  to  Investigate  the   Concentra- 
tion of  Money  and  Credit    (February  28,  1913). 

See  Rogers,  op.  cit,  161  ff. 

149  Pamm,  Powers  of  Regulation  Vested  in  Congress,  (1910)  24  Harv. 
L.  Rev.  77. 

150  This  view  is  based   on   the  authority  of  the  Lottery  Cases  which 
Dean   Hall   says   rested  upon  the  ground  that   "Congress   could  regulate 
interstate  commerce  for  any  purpose  not   forbidden  by  the  constitution, 
not  merely  for  purposes  granted  by  the  constitution,"  (1912)  20  Journal  of 
Political  Economy  473. 


436  MINNESOTA  LAW  REVIEW 

Mr.  Bryan,  in  a  newspaper  debate  with  Senator  Beveridge  in 
1907,  in  which  he  appeared  as  the  champion  of  states  rights,  ex- 
pressed the  belief  that  Congress  could  properly  deny  all  mail  priv- 
ileges to  monopolistic  corporations  or  trusts.151  In  the  autumn 
of  1918  two  bills  were  introduced  into  Congress  providing  for  a 
similar  denial  of  postal  privileges  to  those  who  employed  chil- 
dren below  a  certain  age.152 

At  the  outset  of  any  discussion  of  the  constitutionality  of 
this  type  of  legislation,  it  would  probably  be  admitted  that  Con- 
gress could  deny  mail  privileges  to  persons  as  a  penalty  for  crime. 
If  Congress  may  constitutionally  punish  a  criminal  by  depriving 
him  of  his  citizenship,  surely  it  could  impose  the  lesser  penalty 
of  taking  away  a  specific  incident  to  that  citizenship.  It  would 
make  no  difference  what  the  offense  was  which  was  so  punished, 
provided  only  that  Congress  had  the  constitutional  authority  to 
prohibit  it  and  provided  the  denial  of  mail  privileges  was  im- 
posed as  other  criminal  penalties  are  imposed  after  conviction  in 
a  court  having  jurisdiction.  The  imposition  of  such  a  penalty  in 
any  other  manner  would,  of  course,  be  a  denial  of  liberty  and 
property  without  due  process  of  law.  It  would  clearly  be  a  type 
of  authority  which  could  not  be  delegated  to  an  administrative 
officer.153  It  may  have  been  this  rule  which  prompted  the  cau- 
tious language  of  the  Supreme  Court  in  sustaining  the  power 
conferred  upon  the  postmaster  general  to  refuse  to  deliver  reg- 
istered mail  matter  to  persons  shown  to  be  using  the  mails  for 
fraudulent  purposes.  The  law  authorized  the  withholding  of  all 
such  mail,  and  not  merely  such  as  pertained  to  the  fraudulent 
transactions.  After  commenting  on  the  practical  impossibility 
of  determining  whether  sealed  mail  matter  is  innocent  or  not, 
the  court  went  on  to  say:154 

"It  is  true  it  may  occasionally  happen  that  he  [the  post- 
master general]  would  detain  a  letter  having  no  relation  to  the 

151  "Congress  has  power  to  control  interstate  commerce,  and  the  decis- 
ion of  the  Supreme  Court  in  the  Lottery  Case  leaves  little  doubt  that  that 
power  can  be  so  exercised  as  to  withdraw  the  interstate  railroads  and  tele- 
graph lines  and  the  mails  from  the  corporations  which  control  enough  of 
the  product  of  any  article  to  give  them  an  actual  monopoly."    The  Reader, 
Vol.  9,  p.  356. 

152  Sen.  bills   4732,  4760,   June  27,    1918,   introduced   by   Mr.    Kenyon. 
Cong.  Rec.,  Vol.  56,  8341. 

153  Interstate    Commerce    Commission   v.    Brimson,    (1894)    154  U.    S. 
447,  485,  38  L.  Ed.  1047,  14  S.  C.  R.  1125,  155  U.  S.  3,  39  L.  Ed.  49; 
Wong  Wing  v.  United  States,  (1896)  163  U.  S.  228,  234,  41  L.  Ed.  140,  16 
S.  C.  R.  977;  Whitcomb's  Case,  (1876)  120  Mass.  118,  21  Am.  Rep.  502. 

154  Public  Clearing  House  v.  Coyne,    (1903)    194  U.  S.  497,  48  L.  Ed. 
1092,  24  S.  C.  R.  789. 


THE  NATIONAL  POLICE  POWER  437 

prohibited  business;  but  where  a  person  is  engaged  in  an  enter- 
prise of  this  kind,  receiving  dozens  and  perhaps  hundreds  of 
letters  every  day  containing  remittances  or  correspondence  con- 
nected with  the  prohibited  business,  it  is  not  too  much  to  as- 
sume that,  prima  facie,  at  least,  all  such  letters  are  identified 
with  such  business.  .  .  .  Whether,  in  case  a  private  registered 
letter  was  thus  seized  and  detained,  and  damage  was  thereby 
occasioned  to  the  addressee,  an  action  would  lie  against  the  post- 
master general,  is  not  involved  in  this  case." 

The  Court  seemed  to  view  with  disfavor  a  construction  of 
the  law  which  would  place  in  the  hands  of  an  administrative 
officer  the  power  to  deny  to  a  person  the  right  to  receive  innocent 
mail  matter  because  he  was  found  to  be  using  the  mails  for  for- 
bidden purposes.  Such  a  power  would  savor  of  the  imposition  of 
a  penalty  for  crime  by  the  postmaster  general,  whereas  crime 
can  legally  be  punished  only  by  a  court  of  law.155  It  is  the  belief 
of  the  writer  that  the  power  exercised  by  the  postmaster  gen- 
eral to  exclude  permanently  from  second  class  mail  privileges 
publications  in  the  issues  of  which  he  has  found  non-mailable 
matter  within  the  meaning  of  the  Espionage  Act,  is  open  to 
various  serious  questions  on  the  grounds  just  mentioned.  It  is 
one  thing  to  allow  an  administrative  officer  the  power  to  exclude 
non-mailable  publications;  it  is  a  very  different  thing  to  allow 
him  to  keep  on  excluding  the  subsequent  issues  of  such  publi- 
cations when  in  actual  fact  they  might  prove  to  be  innocent  in 
character.156  Such  procedure  raises,  to  say  the  least,  a  very 
close  question  of  due  process  of  law. 

With  such  legislative  proposals  as  those  mentioned  at  the 
beginning  of  this  section,  however, — laws  in  which  the  denial  of 
mail  privileges  is  imposed  as  a  penalty  for  acts  of  omission  or 
commission  which  Congress  has  no  power  to  punish  directly, — the 

155  A  like  construction  would  presumably  apply  to  the  clause  of  the 
Espionage  Act  conferring  similar  authority  upon  the  postmaster  general. 

156  The  grounds  upon  which  the  postmaster  general  bases  the  propriety 
of  his  action  in  these  cases  are  set  forth  by  him  as  follows :     "To  be  a 
'newspaper  or  other  periodical  publication'  within  the  meaning  of  the  law 
governing  second-class  matter  a  publication  must  among  other  require- 
ments,  be  composed   in    its   entirety   of   mailable   matter.     A   publication 
containing   matter    which    is   nonmailable    is   not   a    'newspaper   or    other 
periodical  publication'  within  the  meaning  of  the  law  and  therefore  is  not 
entitled   to   the    second-class    mail    privilege.      In    administering   the   law 
governing  second-class  matter  it  has  been  found  necessary  to  revoke  the 
second-class  mail  privilege  of  some  publications  for  the  reason  that  their 
contents   consisted  more  or  less   of   matter  which  was   nonmailable   and 
which,  therefore,   removed  them   from  the  class   of   publications  entitled 
under  the  law  to  that  privilege."     Report  of  the  Postmaster  General,  1917, 
p.  65. 


438  MINNESOTA  LAW  REVIEW 

question  of  constitutionality  assumes  a  very  different  form.  This 
is  not  so  much  the  imposing  of  a  penalty  in  the  technical  sense 
of  the  word  as  the  setting  up  of  an  antecedent  or  even  a  con- 
tinuing condition  as  the  price  of  the  enjoyment  of  mail  privi- 
leges. The  price  of  the  privilege  of  using  the  mails  is  the  aban- 
donment of  child  labor,  or  the  cessation  of  monopolistic 
practices,  or  the  filing  of  reports  regarding  corporate  business 
and  activities.  The  test  in  the  light  of  which  the  validity  of  these 
acts  must  be  judged  is,  in  the  last  analysis,  the  relevancy  of  the 
conditions  thus  imposed  to  the  postal  power  and  the  interests  and 
functions  for  the  promotion  of  which  that  power  may  be  used. 
This  seems  to  be  the  test  applied  by  the  Supreme  Court  to 
the  provision  of  the  Newspaper  Publicity  Act  of  1912  which 
denies  the  privileges  of  the  mails  to  publications  which  fail  to 
comply  with  the  requirements  of  the  law  in  respect  to  printing 
semi-annually  certain  facts  respecting  their  ownership  and  con- 
trol.157 In  passing  upon  the  validity  of  this  act,  the  Supreme 
Court,  after  holding  that  the  denial  of  mail  privileges  mentioned 
should  be  construed  to  mean  second  class  privileges  only,  pointed 
out  that  the  condition  imposed  on  the  publishers  was  intimately 
connected  with  the  purposes  for  which  second  class  mail  privi- 
leges had  been  created  and  that  it  was  within  the  scope  of  the 
postal  power  to  extend  those  privileges  "upon  condition  of  com- 
pliance with  regulations  deemed  by  that  body  incidental  and 
necessary  to  the  complete  fruition  of  the  public  policy  lying  at 
the  foundation  of  the  privileges  accorded."158  The  implication 
is  clear  that  if  the  condition  thus  imposed  had  not  been  thus 
related  to  the  public  policy  which  Congress  under  the  postal 
power  could  properly  promote,  it  would  have  been  void.159 

If  the  conditions  thus  imposed  as  the  price  of  the  enjoyment 
of  mail  privileges  are  not  thus  relevant  to  the  purposes  of  the 
postal  power,  as  would  seem  to  be  the  case  with  the  proposed 
child  labor  law,  the  statutes  creating  them  could  be  attacked 

!«  Act  of  August  24,  1912,  37  Stat.  at  L.  553. 

iss  Lewis  Publishing  Co.  v.  Morgan,  (1913)  229  U.  S.  288,  57  L.  Ed. 
1190,  33  S.  C.  R.  867. 

159  The  brief  for  the  government  had  alleged  that  Congress  possessed 
the  most  arbitrary  power  to  classify  mail  privileges.  See  supra,  note  197. 
The  court  concludes  its  opinion  in  this  case  with  the  following  statement: 
"Finally,  because  there  has  developed  no  necessity  of  passing  on  that 
question,  we  do  not  wish  even  by  the  remotest  implication  to  be  regarded 
as  assenting  to  the  broad  contentions  concerning  the  existence  of  arbi- 
trary power  through  the  classification  of  the  mails,  or  by  way  of  con- 
dition, embodied  in  the  proposition  of  the  government  which  we  have 
previously  stated." 


THE  NATIONAL  POLICE  POWER  439 

upon  two  grounds.  It  could  be  urged,  in  the  first  place,  that 
such  laws  were  not  in  reality  exercises  of  the  postal  power  at 
all  because  the  use  of  the  mails  has  nothing  whatever  to  do  with 
the  evil  of  the  child  labor  which  it  is  the  object  of  the  legislation 
to  remedy.160  In  the  second  place,  such  a  statute  would  fail  to 
meet  the  tests  of  due  process  of  law.  What  has  already  been 
said  upon  the  subject  of  due  process  of  law  in  its  application  to 
arbitrary  classifications  of  mail  matter161  would  apply  with  equal 
force  to  the  classifications  established  by  the  acts  now  being  con- 
sidered. When  persons  are  classified  in  respect  to  their  privileges 
in  the  mails  upon  the  basis  of  their  employment  or  non-employ- 
ment of  children,  they  may  properly  urge  that  that  classification 
is  arbitrary  and  a  denial  of  due  process  of  law.  It  may  further 
be  suggested  that  the  Supreme  Court  has  declared  in  a  well 
known  case162  that  a  person  is  deprived  of  due  process  of  law 
by  being  obliged  to  sacrifice  a  constitutional  right  as  the  price 
of  securing  a  privilege  which  the  government  might  withhold 
entirely  in  its  discretion.  This  principle  would  seem  to  be  ap- 
plicable by  way  of  analogy  to  the  case  of  one  who,  as  a  condition 
of  enjoying  the  privileges  of  the  mails  which  Congress  need  not 
extend  to  any  one,  is  required  to  do  something  which  Congress 
could  not  make  him  do,  or  cease  doing  something  which  Con- 
gress could  not  forbid.163  It  is  the  belief  of  the  writer  that  the 
Supreme  Court  would  not  hesitate  to  declare  such  legislation 
unconstitutional  on  either  or  both  of  the  grounds  which  have 
been  mentioned. 

CONCLUSION 

It  seems  clear  from  the  foregoing  analysis  that  the  postal  power 
is  one  which  may  be  wielded  very  effectively  by  Congress  for 
the  police  purposes.  That  power  extends  to  the  adequate  pro- 
tection of  the  postal  service  from  injury;  it  extends  to  the  pro- 
tection of  the  public  from  the  various  dangerous  or  harmful 

180  it  was  urged  by  the  proponents  of  the  Keating-Owen  Act  that  there 
was  a  substantial  relationship  between  child  labor  and  interstate  com- 
merce for  the  reason  that  child  labor  "feeds"  on  interstate  commerce  and 
is  stimulated  thereby.  For  discussion  of  this  point,  see  Cushman,  op. 
cit,  3  MINNESOTA  LAW  REVIEW  471  ff.  The  connection  between  child 
labor  and  interstate  commerce  and  the  postal  system  is  certainly  much 
less  substantial  than  between  child  labor  and  interstate  commerce. 

161  Supra,  p.  427. 

162  Western  Union  Telegraph  Co.  v.  Kansas,  (1910)  216  U.  S.  1,  54  L. 
Ed.  355,  30  S.  C.  R.  355. 

IBS  por  development  of  this  point,  see  Green,  The  Child  Labor  Law 
and  the  Constitution,  Illinois  Law  Bulletin,  April,  1917,  p.  17;  also  Beck, 
Nullification  by  Indirection,  (1910)  23  Harv.  L.  Rev.  441. 


440  MINNESOTA  LAW  REVIEW 

uses  to  which  mail  privileges  may  be  put;  it  extends  to  the  pro- 
motion of  positive  public  policies  related  to  the  broad  purposes  for 
which  the  postal  system  exists ;  it  extends  to  the  withholding  of 
postal  privileges  as  a  means  of  inducing  persons  to  conform  to 
reasonable  requirements  and  regulations  incidental  to  the  privi- 
leges of  the  mails.  But  as  soon  as  Congress  begins  to  use  its 
postal  power  as  a  lever  or  a  club  to  compel  people  to  do  things 
or  refrain  from  doing  things  which  have  no  real  or  intimate 
relation  to  the  postal  system  or  any  of  the  larger  purposes 
which  may  properly  be  promoted  by  it,  the  line  of  constitu- 
tionality has  been  crossed  and  Congress  has  exceeded  its  powers. 
In  exercising  a  police  power  under  the  postal  clause,  as  under 
the  powers  to  tax  and  to  regulate  commerce,  the  ultimate  test 
of  constitutionality  must  be,  not  whether  the  police  regulation 
established  is  necessary  or  desirable  for  the  protection  of  the 
national  health,  safety,  or  morals,  but  whether  the  evil  which 
Congress  is  combatting  has  any  real  and  practical  connection  with 
the  particular  delegated  power  which  Congress  is  employing. 
Any  other  construction  of  the  authority  of  Congress  to  exercise 
a  police  power  would  destroy  the  whole  force  of  the  doctrine  of 
delegated  national  powers  and  allow  Congress  by  a  process  of  the 
most  obvious  indirection  to  deal  with  problems  of  purely  local 
welfare. 


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